Wednesday, 28 January 2015

How do the police decide whether to charge a suspect?

Islington Police Station...in case you weren't sure

A question I’m often asked by clients (and in a roundabout way by people arriving at this blog using searches that ask the question in a variety of ways), is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

First, they can charge or report you for summons to attend court.  Charging means that you are given police bail and are required to attend court in person.  A summons is an order from the court for you to attend or for you to send a solicitor on your behalf.  In many cases where a person is summonsed, the court will allow you the option of entering a plea by post.

Second, you may be given a caution.  These can be a simple caution, which on the face of it is a warning not to be naughty in future, or it can be a conditional caution.  Conditions could include a requirement to pay for the cost of damage or compensation, etc.  Either way, you should ALWAYS take legal advice from an experienced solicitor before accepting a police caution.  Cautions may prevent you working in certain areas, such as with children or vulnerable adults and may prevent you entering some countries like Australia and the USA.

Third, the police can issue you with a fixed penalty notice.  If you decide to accept the notice – and there’s not usually a good reason to refuse to accept one – then you can decide whether to admit the offence or contest it and ask for a court date.  Accepting the fixed penalty notice does not mean you accept you committed a crime.

Finally, the police may decide to take no further action.  This means that they have not been able to find sufficient evidence to choose one of the other options and so the case is finished.  If they receive further evidence in future the case can be resurrected.

How do they decide whether to charge?

Evidence

First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  Experience makes me wonder how well versed in the law of evidence the decision makers are since they frequently seek to rely upon inadmissible evidence – in one case I’m handling at the moment they have failed to serve any admissible evidence whatsoever!

Once the CPS solicitor has identified the relevant evidence they should move on to consider whether there is a realistic prospect of conviction if the evidence were to be put before a jury or magistrate.  If the answer is “no” then the decision should be to take no further action.  If they answer is “yes” then the solicitor should move on to the public interest test.

Public interest

Lord Shawcross was Attorney General in 1951 when he said, “[i]t has never been the rule in this country, I hope it never will be, that suspected criminal offences must automatically be the subject of prosecution.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

The Crown Prosecution Service takes the view that crimes should always be prosecuted unless there is a good reason not to.  Good reasons typically mean some kind of infirmity or disability of the defendant, the fact that they are already serving a lengthy sentence and national security issues.  In cases of mercy killings it is common for the CPS to decide that pursuing the relative who ended their loved one’s life is not in the public interest.

Putting it together

Once the prosecutor has decided that there is sufficient evidence to charge and that it is in the public interest he or she will make a final decision on the outcome.  If the offence is minor and the suspect has made a full confession then it is likely that the decision will be to caution.  If the offence is more serious or there has not been a confession then the prosecutor will authorise the police to charge and bail (or hold in custody) the person to appear in court.

This process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.

                                                                                                                                                        

Tuesday, 20 January 2015

Prison UK: An Insider's View

I have just discovered this blog, written by an ex-prisoner.

I've only had the chance to skim through some of what Alex has to say but it looks like a very interesting read and one I'd like to recommend to anybody with an interest  in the Criminal Justice System.

http://prisonuk.blogspot.co.uk/

Monday, 22 December 2014

Why is rehabilitation treated as a punishment?

Smoking heroin

I was in court today for a duty session.  I represented a man with a long history of drug abuse and offending.  He had taken a ten-year break from crime and drugs, partly because he spent four-years in prison and partly because he met a woman, married and had kids.  A family breakdown has led him back to heroin.

In the past year he’s committed a couple of minor thefts and been found in possession of heroin, which is why I represented him today.

He agreed he needed help to kick the drugs and wanted me to apply for a pre-sentence report aimed at a community order with a drug rehabilitation requirement attached.

His instructions and the recent offending indicate an escalation in offending meaning it’s very likely that without support he will find himself back before the court having committed further offences.

Ultimately, my application for a PSR was refused on the basis that the offence was not sufficiently serious to warrant a punishment as serious as a community order.  In law, the court was quite right – the possession of a single wrap probably did not merit a community order.  In practice, they will find themselves sentencing this man again in the next few weeks when he commits further offences.

This leads me to ask the question: why do we treat rehabilitation as a punishment?

I have no idea why rehab isn’t imposed as an ancillary order rather than as a sentence.  There’s no reason why participation couldn’t still be mandatory but making the requirement ancillary to the sentence would enable the court to help more offenders get themselves clean and that means less crime for everyone else.

Wednesday, 17 December 2014

Iffy experts, barely there solicitors - who do you trust?




Andrew Wakefield - not the expert in this case
but another very dodgy expert who was out for himself

I have begun a three-part series on my heavily under-used blog The London Drink Driving Solicitor looking at how to find the best solicitor for your case.  It was inspired by some work I did recently for a potential client.

This person is represented by another motoring solicitor who has charged her £915 to prepare and conduct a trial – this figure includes an expert report and Counsel’s fees for the first appearance and trial.  Most barristers want £150 - £250 + VAT for a first appearance and between £350 - £500 + VAT to conduct a magistrates’ court trial like this one and I’m told that the expert report cost £450.  So, I’m not really sure how the firm is making any money from these cases, which is why I wasn’t surprised to see that not very much attention appears to have been paid to the preparation of the case.  This is an example of the “pile ‘em high and sell ‘em cheap” approach to law that I thought only existed in less reputable legal aid firms.

It seems to me that this firm have turned a perfectly winnable case into a no-hoper.

The client is accused of failing to provide a specimen ofbreath for analysis.  Her defence is that she has a medical excuse for her failure, namely that the prescription medication she is taking causes shortness of breath.  This is a common side effect of the drug.

The “solicitor”, and I use quotes because the person conducting the case is not a solicitor although this individual is employed by a solicitor’s firm, has instructed an entirely inappropriate expert to give a report.  The expert lacks knowledge of the fields on which he is reporting but has nonetheless given a report that looks at three distinct fields, none of which he appears to possess expertise in.

In my opinion, reports should have been obtained from an expert in the operation of the intoximeter (there are only three experts recognised by the manufacturers although lots of others claim to be experts), a pharmacologist and a respiratory expert.  It is entirely possible, even desirable, that one expert who is qualified in the human respiratory system and the interaction of drugs upon that system could be found.  The expert chosen discloses no knowledge, training or experience in any of the three fields!

The instructed expert has found that the drugs had no impact upon the defendant’s ability to provide despite shortness of breath being so common that the box has a warning on it!  It is entirely possible that this defendant did not experience the side effect; however, since the expert has not taken the time to examine the defendant nor her medical records his conclusion can only be a guess.

Spirometry Test - sorry for the poor quality
He concludes that her lung function is sufficient to provide a specimen of breath yet he has not performed a spirometry test upon her and, as I say, has not considered her medical history, which includes pneumonia and other similar conditions that may be relevant.
In the report he states that “it is believed that” the intoximeter behaves in a certain way – with respect a real expert knows how it functions and does not need to guess.  He was correct, I know because I checked with one of the approved experts who has received training from the device manufacturers and can pick up the phone to them whenever she has a difficult question.  If he is having to guess then he is not qualified to give an expert opinion.

As seems to be common with a number of the firms who operate according to what I call the “minimum work possible principle” nobody from the firm has ever met the client for a face-to-face discussion of her case.  I know it is possible to prepare a case adequately without meeting the client (I once met an armed robber client for the first 6-months after his case ended – he was so pleased with my work he literally got on the floor and kissed my shoes!!) but I do think that if you are going to do the job properly you should make the effort to meet them.  Most drink driving clients are first-timers before the courts and really appreciate the chance to meet with their solicitor and discuss the case properly, which is why I always try to do that – I even travel to meet them somewhere convenient to them for our meetings as a standard part of the service I offer!

If you are looking for a solicitor then do please read the guide I’ve produced, which is published today, part 2 on Monday the 22nd and the final part on Christmas Eve over on http://drinkdrivingsolicitor.blogspot.co.uk/.  Do take the time to ask any potential solicitor a whole lot of questions about their service, their experience and what they will do for you.  Don’t ask about success rates – it’s the legal equivalent of going to a used car dealer and kicking car tyres.


Whatever you need a solicitor for – good luck in your case.

Monday, 15 December 2014

Extraordinary day in court

These days it's not unusual for something to go wrong in court but in the past two-weeks I've witnessed two of the worst breakdowns of my career - if you don't include the prosecutor I made so angry in court he tried to punch me that is.

On the 8th December the court service computer broke down nationwide.  I was in Thames Magistrates' Court at the time and witnessed cases being adjourned as no trial dates could be fixed - this meant that they were setting new dates with no idea as to how busy the court would be on the next occasion. 

In a number of motoring cases, the court was unable to verify defendant's driving records due to the failure meaning that people who ought to be banned as they had totted up to 12 or more penalty points could potentially escape disqualification - I don't know if this did happen.

I heard from colleagues that courts all over the country were in chaos.  An entire nation's criminal court system all but stopped working for most of a day due to the failure of one computer system but not a word of this farce have I read in the press despite a journalist being present in the court I was sat in.

Today was definitely the most bizarre farce I've ever witnessed in a court room.  The prosecutor was running late due to an accident on her way in - these things happen.  When she finally made it to court she found that her new CPS tablet wasn't working properly - this is a problem because all CPS papers are stored on computer these days.  She was called into court by the chairman of the bench who demanded an explanation be giving in person.  Said explanation that was duly given and an argument ensued between the prosecutor and the bench.  I'm not sure exactly what started it but the chairman was treating the prosecutor like a disobedient schoolgirl, in return the prosecutor spoke to the bench like it was composed of rather simple-minded fools who refused to listen to reason.

Eventually, both bench and prosecutor left court.  As she left the prosecutor declared that she would not assist the court and they'd have to find somebody else to prosecute the list.

Papers for all the cases and a working computer were delivered to court.  The prosecutor came in long enough to confirm to the clerk that she was no longer willing to prosecute and another prosecutor would be required.

This stand-off continued for over an hour after the papers were delivered to court with the prosecutor in her room refusing to budge.  Eventually, the court's legal advisor intervened and persuaded the prosecutor to do her job and we managed to get proceedings under-way at 11.50am - a mere 1 hour 50 minutes after the court should have heard the first case!

By that time one young woman defendant had missed her grandfather's funeral and even the investigators who brought the case against her were complaining that the delay was an "inhuman" way to treat people.

The more I attend court the more it's like appearing in a Carry On film.

Saturday, 1 November 2014

Police cautions to be scrapped

A PC, no doubt busy "wrongly dishing out" a caution

I read a news story this morning telling me that Chris "Failing" Grayling is to scrap police cautions so that victims of crime do not feel as though offenders are "walking away scot-free".

First, I should say that I don't hold any firm views on whether this is a good idea or not; however, being deeply cynical of all noises emanating from the mouths of politicians I am inclined to see this as populist hot air.

What are police cautions?  In case you don't know and, like Mr Grayling, believe that a police caution means nothing I shall explain what these things are.  The police can issue a caution where a crime has been committed, somebody has admitted to the crime and has expressed regret.  They will not usually be given if the offender has received a previous caution or has been convicted of a similar offence.  They are useful where it might not be wise to criminalise somebody, e.g. a 12 year old stealing some make up - the cost of prosecution and the resulting criminal record may make some people think that going down the court route is a waste of time, money and resources.  It is also likely to have repercussions for the child later on and may make future offending more likely as a result.

There are two types of police caution: simple and conditional.  Both are normally only used for minor offences.  A simple caution is the end of the matter; however, the caution is recorded on a person's criminal record, although it is not a conviction, and may be disclosable in certain situations.  It will show up on an enhanced criminal records check.  A conditional caution is the same as a simple caution except that the offender must complete some additional task, e.g. paying compensation, writing a letter of apology to the victim, cleaning graffiti or taking part in a drug rehab course.

Mr Grayling proposes a two-tier system whereby first time offenders would receive a "statutory community resolution", which the BBC says, "could see them offering a verbal or written apology to their victim, paying compensation or fixing damage."  The Ministry of Justice has said that community resolutions would not be recorded on criminal record.  So, it's basically a conditional caution but one that is not going to show up on an enhanced criminal records check... I'd call that watering down the existing system but then what do I know?

More serious offences will receive a suspended prosecution that could see offenders paying a fine or attending a drug rehab course.  The wording of the announcement suggests that suspended prosecutions could be issued to second (or more) offenders and that rehab would not be available for those handed a community resolution.  I also can't help but notice that neither the community resolution nor the suspended prosecution currently allows for compensation to be paid to the victim, unlike existing conditional cautions!  The fact that suspended prosecutions are designated for "more serious offences" also suggests that they will be used for offences that would currently be outside the scope of the existing cautioning system in ordinary situations.

The proposals toughen up the cautioning system by abolishing the simple caution; however, they also appear to water down the system in other ways.  For example, by appearing to allow cautions for second time offenders and for more serious offences.

I also wonder who is going to administer this new system?  In the 12-months to September 2012 there were 205,700, which is a 44% fall from the year ending September 2007.  If we are now going to have 205,700 people either being prosecuted or taking part in the new community resolutions and suspended prosecutions then we are going to need a LOT more people monitoring, organising and running these schemes.  Do the Government expect the police to do it?  If so, I can promise you they'll be a lot less bobbies on the beat.  They can't expect the National Probation Service to do it since they just effectively abolished them as well and handed the work to their mates in the private sector (50% of the work went to a major Tory donor and a company run by the wife of the Chief Inspector of Probation - incidentally the inspector was appointed by Grayling and the contract was awarded by... er... Grayling).  So, who exactly is going to run this system and check that the conditions imposed are actually being complied with?

Sadly, in the modern "talk tough... talk bullshit" culture in which politicians exist I don't expect any reasoned debate from the opposition after Sadiq Khan said, "Under David Cameron's government, too many criminals have been getting away with serious crimes.  On their watch, cautions have been dished out wrongly for serious sexual and violent crimes like rape."  It's worth saying that in 2011/12 there were 16,000 reported rapes the police had a detection rate of 30% whereas only 21% of robberied and 13% of burglaries ended with a sanctioned detection, i.e. were solved.  Of those 16,000 rape reports there were 19 cautions "dished out" for rape and of those 19, 16 were given to offenders under 18 years of age.  I'd hardly describe a caution rate of 0.1% as "dishing out" cautions and would suggest that it is an indication of prosecutors and police using their discretion to give a caution only when appropriate.

Sadly, Mr Khan obviously doesn't know what he is talking about, to suggest that cautions are simply "dished out wrongly" shows either a shocking failure to understand the Criminal Justice System or a willingness to play politics with an important public system designed to protect society and individuals.

Mr Khan's words about cautions being "dished out" are particularly galling given that in 2007 (when Mr Khan's party was in power) there were 367,300 cautions handed out compared to 205,700 in 2012.  Also in 2007 there were 27 cautions "dished out" to men accused of rape or attempted rape of a female, which is higher than the 19 in 2012.  But, as a politician Mr Khan will have no interest in letting facts get in the way of a good political football.

Politicians like to play politics and they don't care if they play it with each other, rape victims, child abuser victims or anyone else.

Wednesday, 15 October 2014

Other solicitors

I'm always amused by claims made by other solicitors and concerned when a lot of them don't appear to be quite as honest as they should be.

I regularly hear potential clients give me an account of their escapades that discloses a potential defence or special reason for avoiding a driving disqualification.  I'll give them an honest opinion based on the information they've given me only to be told that another solicitor has told them that he or she can guarantee an acquittal.  It doesn't take a genius to work out that anybody who can guarantee an acquittal is selling snake oil, especially when the claim is made without having seen any evidence whatsoever.

Success rates are another favourite claim of mine - personally I tell anybody who calls that I don't keep a record of success rates because they are rather meaningless.  If I decide to only take cases I'm likely to win then I can engineer a very high success rate.  Alternatively, I might get to my chosen success rate by excluding particular types of case, e.g. where a client doesn't follow my advice or where a defence witness doesn't show up to court.  Things can always go wrong that aren't the solicitors fault so you can quickly exclude pretty much anything you like.

One firm I've come across recently claims "94% Cases defended at court!"  Now, I have no idea what that means.  Does it mean that they show up to 94% of court hearings, i.e. that they don't bother to attend 6% of their client's hearings?  Maybe it means that in 94% of cases they showed up and did their best but in 6% they didn't really try hard.  It could mean that of all the people that have come to them they have taken 94% of those people and their cases to trial.  I have no idea what it means, but big numbers do sound good don't they?

Interestingly, I've come across a specialist motoring law solicitors who only defend drivers accused of crimes.  Their website talks about their great advocacy but none of the staff hold any advocacy accreditations.  More interestingly, out of all the solicitors employed at this criminal motoring law firm only one claims to specialise in criminal law - others appear to be specialists in commercial dispute resolution and commercial litigation.

I'm sure that I will continue to hear more bizarre claims from my fellow solicitors in future.