Friday, 22 July 2016

Historic sexual offences

We must decide on the best way to use limited police resources


The police have a lot of work to do and ever fewer police officers to do that work. Priorities are therefore a must.

If I were a senior police officer, I would want to be setting priorities to focus on dealing with situations and offences that can help people who are currently suffering and finding offenders where there’s actually a prospect of a conviction following.

By and large I’m sure this is what the police do. But, they also prioritise historic sexual offences. I can understand why they would prioritise sexual offences, recent ones and cases where abuse is ongoing, but when it comes to historic allegations I am at a bit of a loss.

Obviously, the victims of these offences may still be suffering today. That’s terrible. But, when an offence took place decades ago you have to wonder at the urgency. Take the case I read about from Cambornetoday. A woman says she was sexually assaulted by a man when she was a child. The offence appears to have taken place sometime between 1974 and 1978, at the time the report was made that is between 42 and 38 years ago. The suspect was a lorry driver in his 30s or 40s at the time, so will now be anywhere between 68 and 91 years old. He had short hair at the time, we don’t know what colour the hair was then and have even less idea what colour it is now, if he even has any. He was of large build then with a fat face but may not be large now; indeed, he may be nothing more than bones or ashes for all we know.

We do not know how old the victim was at the time but given the report gives us a four-year period you have to think that if she wasn’t old enough to pin down her own age (and thus the year of the attack) then was she old enough for her account generally and description specifically to be reliable? If you’re not sure what I mean, go and ask a few young kids how old a 30something is – my nephew amusing estimated that a 50-year-old was in high 80s the other day and my nephew’s in his mid-teens! My son has no idea how old anybody is. From my point of view everybody looks younger and younger every day.

We can assume that the attacker is not known to the victim else we would expect a name to accompany the very vague description.

So, what are the chances of the police finding the attacker who is now aged between 68 and 91 years, is of unknown height. He may be fat but then again might be thin. We don’t know if he’s black, white or blue and have no clues whether the police should be searching lorry yards or graveyards.

Let’s say they find somebody. How can the victim’s identification ever be reliable? He will have changed so much in the past four-decades that he’s unlikely to be recognisable. The police could show her a picture of their suspect from the time but this raises question about the reliability of the identification and you’d hope a court would not allow such evidence to go before a jury – though I wouldn’t put it past many judges.

Assuming the suspect is innocent, what can he say? He can say, “it wasn’t me” but how can he ever prove that? I know that it is for the prosecution to prove their case not the defendant but for those of us in the real world it does help to at least try and show that you’re not guilty in most cases. What are the chances that any suspect will have a diary from the 1970s to hand showing where he was each day? He may have been elsewhere but all we know is that an attack took place sometime in the mid to late 1970s – how can you ever provide an alibi for that?

These cases have enormous problems for the police in identifying and then locating an offender. If they are able to name somebody there are big problems for the prosecution and the suspect. Neither party can provide any real evidence one way or another.

I acted in an historic rape case years ago. Many of the allegations were so absurd that the prosecution dropped half of them before trial. The remaining charges were essentially, “D committed indecent assault/rape on V between 1980 and 1990”. Impossible for the prosecution to prove or for the defendant to disprove. But the poor jury are left in the middle asking themselves whether there really is no smoke without a fire. In that case, they acquitted of all the rapes and all but one of the identical sexual assault charges. They convicted on the very last count despite all the evidence being identical for that charge as for all the others. There was a definite feeling they did it just in case.


In times of significant cuts to police levels and resources it is fair to ask what cases should be prioritised. Today the Times is reporting that the child abuse inquiry by Dame Justice Lowell Goddard has already cost £18 million despite not having taken evidence from a single witness in the year it has been ongoing. Clear the investigation into this offence will not cost so much but it is going to divert resources away from offences that are currently happening. I’m not convinced that’s a good use of police time.

Open letter to the Lord Chancellor

Without access to justice there can be no rule of law
The following is a letter I have sent to our new Lord Chancellor today asking that she takes seriously the problems in the justice system. I do not expect a reply but I shall post one if it comes.

Dear Ms Truss,

Re: Criminal Justice System

Congratulations on your recent appointment as Lord Chancellor and Minister for Justice – I saw the photographs of you at the Royal Courts of Justice this morning and it inspired me to write to you about the appalling state of our Criminal Justice System, although I have very serious doubts whether this letter will ever find its way to you or whether it will be taken seriously if it does.

I am a solicitor, I work for myself representing people accused of motoring offences – particularly offences involving alcohol or drugs and vehicles, these are unglamorous offences such as drink driving. I have previously run a general criminal law firm that handled offences from people travelling on the railway without a ticket up to offences involving corrupt police officers, serious sexual offences and murder. We also did a little employment law and ran free advice days for local members of the public to come and get some free advice about their legal problems.

Since I qualified the CJS has become a gradually less fair place to be for those accused of crime – many of whom are innocent. This problem was exacerbated by the introduction of Criminal Justice Simple, Speed, Summary (CJSSS) that seems to have persuaded many in the CJS that doing things quickly is far more important than achieving justice. While justice should be swift it should also be just!

There are a lot of problems in the system such as constant cutting of legal aid rates (I gave up my legal aid contract in 2011/2 because the rates were too low then for a living to be made – I have no idea how anybody is still in business) and underfunding of the system leading to court buildings that are freezing in winter and boiling in summer. In many courts there are no facilities for advocates to work while waiting for their case to be called and nowhere for us to speak privately to our clients. I’ve even seen police officers drafted from the streets to assist the gaolers in City of London Magistrates Courts because they didn’t have enough staff to take prisoners to court!

In my opinion, the main thing causing unfairness in the system at the moment are the poor decisions being made by court staff, including judges and magistrates. I suspect that the cause of this is related to poor legal training, a lack of staff and general overwork within the courts. In other words, underfunding across the system. I’d like to take a moment to highlight four examples.

First two cases involving people who failed to provide a specimen of breath, neither of whom I represented at the time of their sentencing. One man failed to provide a specimen of breath at the roadside and was disqualified from driving for 18 months. So what you may think – he should have provided the sample.  The so what is that the sentence for this offence is 4 penalty points, not an 18 month ban! In his case, he did provide at the police station and was found to have no alcohol in his system. The second man was disqualified for 18 months for failing to provide a breath sample at the police station after he had been found in charge of his vehicle. In this case, the maximum ban that should normally be imposed in the most extreme cases according to the sentencing guidelines is 12 months. This means that in two separate cases that happened at different times in different courts there were two court employed legal advisors, two prosecutors, two defence lawyers and two judges (or six magistrates) who did not recognise that excessive sentences were being imposed.

In the third case, I represented a lady accused of drink driving. She insisted she was not guilty and, on the day of her trial, the Crown accepted that they could not secure a conviction against her and discontinued their case. I applied for a Defendant’s Costs Order on her behalf, which was refused. The District Judge gave his reasons that she might have been guilty anyway and he had a duty to protect public money. This is a decision made in complete defiance of the established law. But, the judge knows he can get away with it because very few privately paying defendants can afford to take their cases further than is absolutely necessary to get justice for themselves. I have no doubt that had this lady judicially reviewed this decision she would have won but she simply cannot afford to do so – this also highlights a problem with access to justice that faces millions of ordinary, hardworking people in this country.

The fourth case is one in which I acted but did not appear for the trial. The long and short is that the defendant was convicted. The barrister who represented him was outraged claiming that the magistrates had ignored huge problems with the prosecution evidence to reach their verdict – this is unimportant what is important is that we immediately lodged an appeal against conviction. However, the court refused to process the appeal because the defendant has not been sentenced yet. I asked the court to reconsider and pointed to the Criminal Procedure Rules. I received a response telling me that the rules say my notice of appeal must state the sentence and since I cannot do that until after the sentence is imposed the court cannot process the appeal. This is completely wrong and it is clear from the provisions quoted that the person who made this decision lacks the legal knowledge to understand the rules they are citing. FYI the rules are very clear that sentence needs only be stated when you are appealing sentence, which we are not doing. The court is clearly in breach of the Criminal Procedure Rules but, once again, there is nothing the defendant can do about it because he lacks the funds to judicially review the court’s decision. This is a problem with access to justice.

The four cases I mention are examples of problems I have personal experience of over the past few months. If the problems in the CJS are an iceberg then these four cases are merely the first inkling of trouble seen by the lookouts on the Titanic!

My impression of the CJS is that far too many people in it prioritise meeting KPIs, such as dealing with cases quickly, over achieving justice. This leads to injustice. I read you are a qualified accountant so let me put it into terms you will understand. The approach of many in the courts is akin to an accountant prioritising completing a company’s accounts over getting the accounts correct!

The response of many people, including magistrates and judges, to criticism is simply to say, “well if something goes wrong you can always appeal”. But this is not good enough for three reasons. First, courts should be aiming to get it right first time, every time. Secondly, the appeal courts are not there to provide a routine second chance, they should be used only in rare circumstances. Finally, many people will not qualify for legal aid, but they fall into a gap where paying privately is difficult if not impossible. Many of my clients find funding their defence difficult and the idea of appealing a conviction or judicially reviewing a decision is beyond their financial capability. Thus there is a deficit in peoples’ ability to access justice.

For those paying privately a big problem with them accessing justice is that they know that if they are acquitted they will not get their legal fees back. Thus they pay a significant amount of money to prove to the court and the world that they are not a criminal. This is a direct consequence of a government decision to limit the amount innocent people can get back to legal aid rates – legal aid rates are so low that the famous Cab Rank Rule, which requires barristers to take any case offered to them, does not apply to any work funded by legal aid! The result of capping the costs innocent people can reclaim means that many defendants will look at the cost of defending themselves versus the cost of being convicted and will enter a plea on a commercial basis of what will cost less rather than on whether they are actually guilty of the offence they are accused of committing. I have seen many defendants plead guilty on this basis! So much for the celebrated maxim that it is better to let ten guilty men go free than to convict a single innocent man.

This is just criminal law; I gather things are even worse in other areas of law. In particular, I read regularly that parents fighting for access to their children in the family courts are turning to fee-charging McKenzie Friends. These are people with no legal qualifications, no legal experience and no insurance should they make a mistake. Parents are using these people because they feel they have no other way of accessing justice because legal aid has been withdrawn from them. Now you may think, “why don’t solicitors just charge less?” The answer to that is that solicitors have tremendous overheads. I am required to carry £3M of insurance for every case I take – other solicitors will have higher insurance requirements depending on the work they do. Solicitors also have huge upfront training costs to qualify, large fees to regulators each year and ongoing professional training each year. Thus, it costs more to be a solicitor than it does to be a McKenzie Friend because of all the features that exist to protect consumers from us making mistakes!

I’ve now outlined a few of the problems that face the justice system. Many of the problems in the courts cause injustice and prevent people accessing the justice system altogether. These are not abstract concepts. For many of my clients a bad decision means the loss of their job and home. In the family courts an inability to access the courts and proper legal advice can leave children and parents unable to see each other for years on end. It means employees who are mistreated by their employers are unable to get justice – I see in the news just this morning that it has taken a Parliamentary enquiry to uncover the mistreatment of employees at Sports Direct. Failing to ensure ordinary people can get access to justice means that their lives are blighted for years to come, maybe even for ever.

You swore yesterday to uphold the rule of law. When people cannot access justice the rule of law is meaningless. I am asking that you take seriously the many concerns of the professions that you will hear during your time as Lord Chancellor. I ask that you look seriously at what is happening in our justice system and so something to stop the rot, which is already well set in. I ask that you stand up to the Treasury when they inevitably come looking for yet more funding cuts – no doubt to pay the £5k a day I read the new Ministry for Brexit will be paying to their lawyers.

You’ll have many advisers who will no doubt tell you that everything is great and more cuts can be made safely. They don’t know what they are talking about! Please listen to the professions – don’t be a Chris “Failing” Grayling who asks for the professions views, receives 14,000 responses telling him his plan is a bad one and who ignores all those voices and does it anyway.

I hope that you’ll be a good Lord Chancellor who acts to protect the rule of law and ensure that the ordinary man and woman on the street can seek the protection of the law. But, the truth is that I have long ago lost any faith in the politicians who inhabit Westminster.  Years of mismanagement of the legal system tells me not to expect much in the next few years.

I hope I am wrong.


Yours sincerely,



Nicholas Diable

Thursday, 14 July 2016

Misogyny to become a hate crime

Nottinghamshire Police will record and investigate misogyny as a hate crime



Nottinghamshire Police have decided to classify any behaviour perceived to be misogynistic as hate crimes. This includes such things as wolf-whistles, unwanted texts, taking an unwanted photograph and sexual harassment.

A spokeswoman for Nottinghamshire Police said that categorising misogynistic behaviour as a hate crime and highlighting the issue would lead to increased reports and therefore a higher number of charges. This is interesting since the police also admit that they will be applying the label “hate crime” and investigating allegations that “do not reach the charging threshold” – or to put it another way, things that are not crimes and thus cannot result in a higher number of charges.

Wolf-whistles and the taking of unwanted photographs are not currently criminal offences unless they go beyond a one-off incident and become harassment. So far as I am aware, there are no plans to criminalise these behaviours, although I read in the Times that they are offences in other countries. Unwanted text messages is a very broad label – I get them all the time from my local pizza shop – but there is a point where sending unwanted messages becomes a crime, usually harassment although other offences could be committed depending on the content of the message. The police already investigate these and have done for many years

Interestingly, the Times reports that [g]roping a woman will be classed as a hate crime for the first time and may result in a criminal charge.” I hate to break it to you guys at the Times but groping a man or a woman has been a crime for a very long time and I would hope Nottinghamshire Police have always taken that type of thing seriously.

Just to put this decision into context, Nottinghamshire Police is dealing with £54 million budget cuts over the past 4 years and £12 million of budget cuts to come. The force has been looking to make cuts, most notably by axing the forces city division and, potentially cutting 400 officers over three years. The Chief Constable of Nottingham Police has recently quit and his deputy has delayed her retirement to become temporary Chief Constable for eight-months until April 2017. 

All these leaves me wondering whether Nottinghamshire Police actually have the resources to take on investigations into matters that are clearly never going to result in criminal charges and how they’d go about such an investigation.

Will police officers be sent to speak to builders accused of wolf-whistling? Will they expend resources tracking the man responsible down? What if he doesn’t wish to speak to the police, will they arrest him? Would such an arrest even be lawful? Section 24 of Police and Criminal Evidence Act 1984 would suggest not since an officer can have no grounds for suspecting that somebody has committed an offence when they know the thing they are investigating is not an offence. True they could dress it up as harassment but all that will do is waste time and money not to mention open the force up to wrongful detention lawsuits!

I think the reality is that despite the force’s claim that all reports will be investigated, the reality is that the police are unlikely to have the resources or the powers to investigate the trivial incidents at which this new policy is aimed. Serious incidents will continue to be investigated as always. So, when all is said and done, this policy looks like a paper exercise designed to record incidents rather than tackle them. It also looks rather like a publicity stunt for a new Chief Constable in the first few weeks of her job and looking to make a mark.

Thursday, 23 June 2016

Operation Croissant banned


Operation Croissant



The Homicide and Major Organised Crimes Command unit of the Metropolitan Police recently contacted organisers of Operation Croissant to tell them that their plan to hand out free croissants to commuters in London is banned as a “corrupt practice” under section 114 of the Representation of the People Act 1983.

Section 114 falls under the heading “Bribery, treating and undue influence”. Section 113 deals with bribery while section 114 deals with “treating”, which is exactly what it sounds like – giving somebody a treat to influence their decision to vote or refrain from voting.  Section 114 reads:

114 Treating.

(1 )A person shall be guilty of a corrupt practice if he is guilty of treating.

(2) A person shall be guilty of treating if he corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing, any meat, drink, entertainment or provision to or for any person—

(a)for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or

(b)on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting.

(3) Every elector or his proxy who corruptly accepts or takes any such meat, drink, entertainment or provision shall also be guilty of treating.”

Section 114(1) tells us that “corrupt practice” is the offence and sub-section 2 sets out how the offence is committed. We see the word “corrupt” and “corruptly” repeated several times, according to my dictionary the word means:

“adjective
1.       having or showing a willingness to act dishonestly in return for money or personal gain.
"unscrupulous logging companies assisted by corrupt officials"
synonyms:          dishonest, dishonourable, unscrupulous, unprincipled, amoral, untrustworthy, underhand, deceitful, double-dealing, disreputable, discreditable, shameful, scandalous;
verb
1.       cause to act dishonestly in return for money or personal gain.
"there is a continuing fear of firms corrupting politicians in the search for contracts"
synonyms:          bribe, suborn, buy, buy off, pay off

So, to be corrupt a person should be acting dishonestly or causing another to do so – in the case of an election I’d suggest that means the person giving the treat is giving the treat as payment for the voting or the refraining from voting. Therefore, the mens rea of the offence must be that the person giving the treat dishonestly intends that the treat will influence the person receiving the treat to either vote or refrain from voting. You could also argue that the person giving the treat must intend the person receiving the treat will act dishonestly in making his or her decision to vote or not vote. At this point, it’s worth considering the intention of Parliament when this Act was passed and, we’ve already seen that “treating” falls into the same category as “bribery”. What’s the difference? Section 113 requires “money” to be paid to “induce any voter to vote or refrain from voting” while section 114 is effectively payment by anything other than money. Therefore, we can be sure that the intention of Parliament was to stop people being bribed for their vote.

So, the big question is, “were the plans of Operation Croissant a crime in the UK?” To answer that we have to look at their plans and intentions.

You can read their own words on their website. It seems that the plan was to travel from Paris with pastries and post cards with personal notes from Parisians that say how they feel about the UK remaining within the EU:

“The point is to show how close we are. It’s not a grand political gesture; it’s not designed to spark debate or court controversy. Quite the opposite. It’s simply an act of breaking bread.”

Let’s run through the offence. Are they “giving or providing any meat, drink, entertainment or provision”? Yes. Clearly they are. Next we ask, is the purpose to “corruptly influence that person or any person to vote or refrain from voting”? As we’ve seen, the Act is really asking whether the person giving the treat is doing so corruptly to influence the receiver to act dishonestly? I remind myself that section 114 reflects the bribery offence in section 113. I find that I cannot conclude that Operation Croissant, based on what they’ve said previously planned to act corruptly or to dishonestly influence voters.

On that basis, I cannot see that their plan would have breached section 114 of the Representation of the People Act 1983.

In saying this, I realise I am up against some pretty stiff competition from Professor Bob Watt, a specialist on electoral law at the University of Buckingham who takes the view that this sort of thing is clearly a crime and that the police were correct to prevent the organisers of Operation Croissant going ahead.