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.

Thursday, 9 October 2014

Bringing the law into it

But it would be nice if we could get the law right

If you see me in court and somebody brings up a point of law you may well hear me jokingly ask the judge “not to bring the law into it”.  I don’t mean it (unless the law happens to be against me, in which case I’d much rather it were left out), but there are an increasing number of people who genuinely seem to believe that the actual law has no place in a court of law.  They will happily quote their version of the law but the actual law… well we’ll leave that at the door.

I recently conducted a trial at the start of which the prosecutor forcefully informed me that my defence had no basis in law.  I obviously told him that was jolly fascinating and that he should tell somebody who cared.  Next up popped the court legal adviser who told me the same – in suspiciously similar terms to the prosecutor.  I pointed out that my defence was valid at which he scoffed.  I recommended he go and read a particular case.

In court, both the prosecutor and legal adviser lectured the court that one part of my defence had no basis in law.  I corrected them both with reference to the law!  After much brow furrowing the legal adviser managed to locate the relevant passage in Wilkinson’s.  He grudgingly conceded that I might be correct but then went onto give his own spin on the law that effectively amounted to “well if the police officer doesn’t think this was relevant then the court cannot go behind that.”  Now, this is clearly a nonsense – decisions by police officers binding courts might be popular with Theresa May but it is rather a bad show for the concept of justice.  He also tried to distinguish the case law from our case on the facts, despite him not knowing the facts of the case law.

The thing that particularly annoyed me was the legal adviser’s decision to give a detailed description of how the Court of Appeal intended its decision to affect future cases WITHOUT READING THE CASE!  All he had to go on were five lines in Wilkinson’s that give nothing more than a passing description of the facts and decision, while the actual report is about 12 pages long.

This is by no means an isolated incident.  Earlier in the year, I caught out two advocates attempting to use cases against me that they had glanced at in Archbold but had neither read nor understood.  Although to be fair, in one instance the learned editors of Archbold had got the case law wrong as well so it wasn’t entirely the advocates fault.  One of the advocates was very junior so has no excuse for having forgotten his legal research skills.  The other was very senior prosecuting me in a child abuse case in the Crown Court and so had no excuse for not having learned the lesson of not relying on cases you haven’t bothered to read!  Incidentally, in both instances I had anticipated the relevance of these cases in my preparation and so took the trouble to read them in advance.

I imagine that this is a new thing, although, like complaining about the atrocious behaviour of the modern youth, it may be as old a complaint as time itself.

I can’t help but wondering whether the lack of investment into the Criminal Justice System is behind what seems to me like a downward trend in the effort put into researching the law for cases.  Staff levels in magistrates courts have been heavily cut, as have costs in the CPS and defence firms all of which means there are often less people trying to do the same (or often more) work thus leaving little time for preparation, which includes proper research of the law.  In the magistrates’ court, it is very common to see a prosecutor who has been handed several piles of papers with no opportunity to read any of them immediately before the trial begins.  It also means that legal advisers frequently rely on elderly copies of legal books and have no access to the online research tools that are available, which can cost several thousand pounds per year to access.

Tuesday, 30 September 2014

Revenge porn (again)

Screenshot from banner of revenge porn website
Revenge porn
I talked about the proposal to create an offence involving images that are construed to be "revenge porn" back in June.  It's an issue that simply won't die the death it so desperately needs to.

In the latest instalment of the campaign for yet more legislation the BBC published a story of one woman's "six-month ordeal" at the hands of her ex-boyfriend.

I am sometimes accused (usually by people who don't read the whole thing) of lacking sympathy for victims and not wanting offenders prosecuted, but that's not true.  I do have sympathy for this lady and have no problem with her ex being prosecuted.  What I object to is the knee-jerk reaction to create a new crime for every social problem in the hope that will solve the problem... it won't!  I'll let you into a secret - murder has been illegal for as long as anybody can remember yet people are still murdered... on average someone is killed unlawfully every day!  Making revenge porn a crime won't stop it happening it will just mean that there is a new crime that the police don't have the resources to properly investigate and prosecute.

The thing that angers me the most is that in the campaign to promote this new legislation victims are being let down.  I give you this line from the Beebs story, "Surrey Police said it was "virtually powerless" to act as "revenge porn" was not covered in criminal legislation."

"Virtually powerless"?  Now, I know that Surrey Police have heard of the Protection from Harassment Act 1997 (itself another hastily and poorly drafted knee-jerk reaction to a high profile case in the mid-1990s) because I've sat in interviews where their officers have questioned suspects accused of harassment.  Section 1 of the Protection from Harassment Act 1997 has this to say:

"(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other."
How do we know whether something is harassment or not?  Well, the PHA 1997 has the answer in section 1(2):

"the person whose course of conduct is in question ought to know that it amounts to [or involves ] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to [or involved ] harassment of the other"
We are also told by section 7(2) that harassment can include "causing the person distress".  I suspect that publishing dirty pictures of somebody without their consent would cause them distress.

Section 7(3)(a) of the Act tells us that a "course of conduct" means "conduct on at least two occasions in relation to that person".  At section 7(4) it also tells us that “'Conduct' includes speech".

So, were the police correct to say that they were powerless to help the lady in Aunty's story?  Clearly not.  There was plenty they could have done. but for whatever reason they appear to have chosen to do nothing.

Tuesday, 26 August 2014

Stupidity of the system


I sometimes find myself despairing at the stupidity of the Criminal Justice System.  It's 5am as I write this and I've just had a client charged with the offence of causing a public nuisance, which is an ancient common law offence of little value in the modern world - I tend to think that when an offence is so rooted in history that nearly all the major developments happened not in this century, nor the one before and only barely in the one before that it may be time to let the offence quietly die.  The earliest case on public nuisance I can easily find that is still relevant dates from 1703 and the current definition of the offence appears to date from sometime prior to 1835!

Public nuisance, no matter how ancient, isn't the stupidity that has me up and annoyed when I should be asleep.

In this case, the accused was transiting the UK at a major airport.  His flight was delayed and staff found his behaviour sufficiently egregious that they called police after a threat was made (but not carried out) to damage the airport carpet.  The accused denies that this happened.

Any sensible person would look at this relatively minor offence by a foreign national, kick them out of the country and ban them from ever returning, even simply to transit through.  Given that the UK is one of the world's major transit hubs you'd think that this would cause difficulties enough.  But no, here in the UK we would rather charge somebody with an ancient offence and hold them in custody to ensure that they miss the flight that would relieve the British taxpayer of the burden of dealing with them.

Assuming that this person is convicted, they are going to receive a small fine at worst - I say this because despite the charge this is really an allegation of making threats to cause criminal damage under s. 2 of the Criminal Damage Act 1971.  The Magistrates' Courts Sentencing Guidelines indicate a maximum of a fine where actual but minor damage has been caused.

Given that this person denies committing the offence, what will the system do if she enters a not guilty plea and chooses to be tried in the Crown Court?  They'll refuse him bail and keep him in custody resulting in a huge cost to the taxpayer.  I've seen this done before in other cases and only once have I managed to successfully persuade a court that simply because somebody is a foreigner doesn't mean that they are going to fail to attend court.  In the last case of this type, a man was accused of going equipped to shoplift - nothing had been stolen.  He had no previous convictions in the UK, denied the offence and was remanded in custody to await a trial that had been set for two-months hence!  The sentencing guidelines indicate a sentence of up to a community order, i.e. not prison.

I'm not arguing that foreigners should have carte blanche to do as they please in the UK without fear of punishment, but what I am saying is that when an offence is so minor that the only realistic punishment is a small fine (that will probably never be paid) then it is not in the interests of the British public to prosecute and spend taxpayers money on what is effectively a pointless prosecution.

I've always found the following to be the wisest part of the Code for Crown prosecutors:
"5.6   In 1951, Lord Shawcross, who was Attorney General, made
the classic statement on public interest, which has been
supported by Attorneys General ever since: “It 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”. (House of Commons Debates, volume 483,
column 681, 29 January 1951.) "