Thursday, 3 September 2015

Should the drink driving limit be lowered? A personal view

Group of friends drinking large beers
Which one is the Des?

I am regularly asked… well often… sometimes?  Okay, okay… I’ve been asked two or three times whether I think that they drink driving limit should be lowered to match the Scottish limit or even dropped to zero.

Obviously as I am a solicitor who represents an awful lot of drink drivers through London Drink Driving Solicitor and Oxford DrinkDriving Solicitor, everybody assumes that I have a vested interest in keeping the limit where it is and making sentences less onerous on drink drivers – presumably because they see me as the drink driver’s friend.  I am sure that this is the reason they ask me: everybody knows drink drivers are evil (link to blog) so when they meet me they assume they can start a debate (or maybe have an excuse to shout at me).  Let’s get one thing out of the way: I don’t feel like I have a vested interest in where the drink driving limit is set!  Murder, rape and drugs are illegal and people are in court for all three every day of the week.  I seriously doubt that reducing the drink driving limit would have a catastrophic effect on my business and, if drink driving were eliminated overnight then great.  I’ll go do something else.

The truth is that I don’t really have a strong opinion one way or the other.  I think that if there is good evidence that supports moving the drink driving limit then move it.  If the evidence says raise it (which it doesn’t) then go up… if it says drop it to zero then drop it to zero.  By the way, I have previously predicted thatEngland and Wales will drop the limit to match that of Scotland and I still think that is inevitable.

Currently, the limit in blood in England and Wales is 80 microgrammes per 100 ml of blood.  The Centresfor Disease Control and Prevention (CDC) in the USA says that a 72.6kg man will reach this level after about 2 and a half pints of 5% beer.  At that level they predict that you will have impaired perception, reduced information processing capability, poorer ability to control speed, a lack of concentration, you will struggle to detect danger and your judgment, self-control, reasoning and memory all become impaired.

My own experience suggests that many people will not notice any of these things.  I can certainly say that I have had a higher alcohol level and felt absolutely fine.  But, that may be because alcohol begins to impair your judgment at just 20 microgrammes per 100 ml of blood and at around 50 microgrammes you will begin to get that good feeling even as your judgment, inhibition and ability to detect danger all ebb away.

Most of my clients are not persistent drink drivers – I’ve had a few but they are very much in the minority.  The overwhelming majority are people who have absolutely no understanding of how alcohol affects them and at what level they will be over the drink driving limit.  None of them want to cause any harm – in fact among my clients are doctors who spend their days saving the lives of small children with nasty diseases and school teachers who want the best for their kids.

It is quite possible that a zero alcohol limit would make clear to people like that that they should not be consuming any alcohol before driving.  But, I’m not so sure because a very common theme among people I meet is that they leave a gap between their drinking and their driving.  Very few of the people I meet go direct from pub to car.  Would the doctor who had a couple of glasses of wine with his lunch while celebrating some new funding for his department really think he’d still be over the limit some hours later when he goes home?  There are already plenty of people who are convicted for drink driving the morning after drinking the previous evening.  Will reducing the limit stop them?

I’m all for taking action that will reduce the number of people who are killed or injured on the roads provided the action is being taken for the right reasons, i.e. because it is likely to work.  All too often, decisions are made in criminal law on the basis of politician’s logic: something must be done, this is something, let’s do that.

Thursday, 13 August 2015

Everyone's a solicitor these days

Man looking at law books on a shelf while scratching his head in confustion
Choosing a solicitor can be confusing work

Last December, I wrote about a case where a lady had come to me for a second opinion having instructed a solicitor's firm who immediately passed her case to an unqualified paralegal to handle. The paralegal then instructed a wholly inappropriate "expert" who produced a report based entirely on his own guesswork. They wasted about a £1,000 of the lady's money and proved that going for the cheapest quote isn't a great plan any more when instructing a solicitor than when hiring a builder.

Today, I spoke to a lady who is looking for a solicitor. She asked me a lot of questions about my qualifications (that's a good idea, know who you're dealing with before you instruct them). She also told me about another solicitor she had spoken to and had been impressed by, she gave me the other solicitor's name and made clear that she is a qualified solicitor - I admit I always ask who else a potential client has spoken to - but couldn't remember the name of her firm, so I Googled her.

I immediately discovered a press release, which states:

"We are also expanding, due in part to our success and reputation, but also because of the calibre of solicitors our firm is attracting. A recent addition to the team is Jane Smith, with over 3 years practice experience Jane previously worked in the public sector for the Local Authority." (Names and some text have been changed to hide identities without altering the feel of the original).

I don't know this lady - maybe she's
qualified... maybe she isn't (she isn't,
she's from Shutterstock)
Now, Jane Smith isn't her real name and the press release does not explicitly say that Jane is a solicitor, but I think that most people reading that would think she is.  I checked with the Solicitors Regulation Authority and confirmed my suspicion that Jane is not a qualified solicitor.  I have no idea what, if any, qualifications she has to be dispensing legal advice but she certainly does not appear to be a qualified solicitor.  The SRA do sometimes make mistakes - for a long time it was impossible to find my record through the search tool on their website, although I showed up when you found my firm... I checked her firm and she is not listed as a solicitor there either.

What's the moral of the story?  When you instruct a professional, such as a solicitor, find out about their qualifications and make sure the person you are speaking to has the qualifications they claim to have.  You can check a solicitor is real with the Solicitors Regulation Authority - here's my entry.

Not everybody you speak to is honest or has your best interests at heart.  Try to always instruct a solicitor you will be meeting face to face - if they are based in Hull and providing a nationwide service with two staff and a single office then ask when you'll meet your solicitor and who will represent you in court - often the "national" firms will never meet you and will just dispatch any barrister who happens to be free to court, which means you are unlikely to get a consistent service.

I don't want to turn this post into an advert for my firm, but I will say that the ethos of my practice is that when you instruct Nick, you get Nick - so I will generally represent every client at every court hearing and if it's not going to be possible then I will tell you that before you instruct me.  I want to meet every client before their case and I'll always meet them at a location convenient to them, which is why I focus my efforts on people based in London and Oxfordshire only.  I know that there are many other solicitors (and direct access barristers) who work in the same, or very similar, way and provide a great service to their clients.  If you need a solicitor, make sure you find the right one for you.

Monday, 3 August 2015

I'm not a banker but...

Tom Hayes sentenced to 14-years imprisonment for Libor fraud

This afternoon came the news that former City trader for UBS and Citi Bank, Tom Hayes, has been convicted and sentenced to 14-years imprisonment for his part in fixing the London interbank offered rate (Libor).  According to the news sites, Libor was manipulated by so many traders that one has to wonder why anybody trusted it at all.  It also begs the question why only Mr Hayes has been prosecuted when the media report that discussion of Libor fixing was rife in the City.

So, what did he do?  First, I don’t claim to be an expert in banking but so far as I understand it Libor is the interest rate at which banks lend to each other.  Each bank reports the interest rate it is paying to the British Bankers Association each morning, which then sets the Libor rate based on an average of those rates after eliminating the highest and lowest rates reported.  Because the Libor rate is used for a market worth around $10 trillion even very small shifts in the rate can have big consequences for trades made within the market.  Mr Hayes is said to have arranged with others to set the Libor rate at a particular level that would be helpful to him and his bank.

It was accepted during the trial that Libor fixing pre-dated Mr Hayes arrival at UBS but the prosecution said it got worse while he was there as a result of his activities.

For his actions, Mr Hayes has received a 14-year prison sentence, of which he will serve at least 7-years and then be released on licence for the remainder of his sentence.

I’d like to take a moment to compare and contrast this offence with others.

Last week I sat in court and watched another trial that was taking place before my case was called on.  It was an allegation that a group of 18-19 year old men had gone out together looking for another man to attack.  They found a victim, a somewhat overweight middle-aged man, and proceeded to assault him by punching him to the ground where he was kicked several times before passers-by stopped the attack.  The single defendant was convicted and released on bail pending sentence.  During his evidence, the defendant constantly referred to the victim as “the chavvy” and made it clear that he saw nothing wrong in the attack and felt as though the victim deserved to be attacked – although both victim and attacker agreed that neither knew each other.  If he goes to prison – and it’s a big if – the longest sentence he will get is six-months imprisonment for an unprovoked, planned gang attack on an entirely innocent man.  The victim told the court that as a result of the attack he had been afraid to go outside at night for some months afterwards.

Personally, I think that the violent attacker deserves immediate prison more than the fraudster.

So, what level of violence is equal to a fraud?  Gerald Baker was a teenager in the 1970s when he raped two girls, one a six-year-old and he kept raping her regularly until she was 11.  For that offence he received a 14-year prison sentence in July 2015.  But, this was not his first conviction, in the 1980s he was twice convicted for having sex with a girl under 16 and in 1998, he attacked and indecently assaulted a seven-year-old boy, an offence for which he received just three-year imprisonment.  So, it seems that a child rapist needs to have some significant convictions before he gets the same sentence as a first time fraudster.

On the 8th January 2015, Ian Montgomery had an "an extreme and violent explosion of temper" when he embarked on a “brutal, prolonged attack” on his wife of 14 years using a “using a variety of weapons, intending to kill” said HHJ Chambers QC in July 2015 when he sentenced Mr Montgomery.

Mrs Montgomery took over an hour to die from the beating and multiple stab wounds while her murderer went out to work where his colleagues described him as “calm”.

The only sentence for murder is life imprisonment; however, the judge must also set a minimum period the offender must serve before being released.  What minimum period did the justice system deem sufficient punishment for taking the life of Mrs Montgomery and leaving her to die alone knowing that help was never coming to her?  You guessed it, 14-years… the same time our banking fraudster friend received today!  Now, I know that the sentence is actually one of life imprisonment, but the minimum period must reflect the period of punishment deemed appropriate for a given offence – the rest of the life sentence is there not to punish but to protect society from the release of somebody who may still be dangerous.

I have said to clients for years that if they go out and knock their wives or girlfriends around the house, as long as they don’t kill her, they’ll never get a sentence near what they’d receive if they steal money from big business or the government – now it seems that even if they do kill her they’ll only just get the same sentence!

I’m not saying that fraudsters should never go to prison, but when we live in a society where the punishment period imposed for murder and repeat rapists are the same as those imposed on fraudsters I think we’ve taken a wrong turn somewhere.

Thursday, 30 July 2015

Do I really need a solicitor?

Man in handcuffs appears before a wigged judge
I'm not sure what country this court is in but you get the idea

I am approached fairly regularly by people who have gone to court without a solicitor because they’re “just pleading guilty” and it’s a “simple case” only to find that they have been shafted by the court.

In the most recent example, I spoke to a man who has some very ancient convictions from the 1980s and a more recent drink driving conviction from 2005.  The sentencing guidelines indicate that somebody pleading not guilty should receive a driving disqualification of between 36 and 52 months.

Having looked at the prosecution evidence there are no aggravating features beyond the previous conviction, which the sentencing guidelines take into account anyway.  There is always something to be said in mitigation, whether it’s mitigation of the offence or personal mitigation.  Although, having seen a number of unrepresented defendant’s they rarely put their mitigation well.

If I had appeared at court I would have been advising this person to expect a disqualification of between 36-48 months plus unpaid work of around 200-hours, taking account of the fact he has no convictions for a decade and was pleading guilty.

The District Judge passing sentence decided to impose a 60-month driving ban without giving any reason why he was ignoring the guidelines.  He also failed to give the defendant any discount for his early guilty plea also without any explanation.

What’s the moral of the story?  Get a bloody solicitor!

Here’s a really great solicitor (well it’s worth a try).

Wednesday, 15 July 2015

Defendants held in custody as no solicitor available to seek bail

Royal Courts of Justice
Royal Courts of (in)Justice

On the 1st July 2015, the government introduced a cut to solicitors legal aid fees, this was about a 9.51% cut from the rate applicable on the 30th June 2015 (nb at the same time the head of the Legal Aid Agency was awarded a 10% pay rise) and is part of an overall 17.5% cut in fees since the March 2014.  In reality, the cut is far more than a mere 17.5% because fees have been changed in other ways that need not concern us here, suffice to say that some of the cuts to fees are as high as 50% reductions!

Since the 1st July 2015, a very large number of criminal legal aid solicitors have been refusing to work for the new fees.  I am not surprised by this; I began handing back my legal aid contract in 2011 and ceased all legal aid work in June 2012 partly because the rates then were so low that I could not earn a living and simultaneous provide clients with the level of service that a) they deserved; and b) my obligations as a solicitor required.

The Ministry of Justice has claimed that the action is having no impact whatsoever; however, the police clearly do not agree with the Guardian reporting that “South Yorkshire police and other forces have confirmed that cases are backing up in custody suites and interview rooms”.  My own experience has been witnessing row upon row of unrepresented defendants in court waiting areas looking on, somewhat jealously, at those who can afford to pay privately for a solicitor to defend them.  I appeared at Uxbridge magistrates’ court earlier this week.  I asked court staff how things were going and was told it was a nightmare.  No defendants were ready and the court was preparing to sit at least two-hours late to 6.30pm and possibly beyond – this was at 11am!

Anyway, the point of this blog is really to discuss a point I saw made in the Guardian newspaper this morning.  They say that the protest has resulted “… in many defendants being remanded in custody because there is no solicitor available to apply for bail on their behalf.
With no solicitors, will you be relying
on the court cat to represent you?

Section 4(1) of the Bail Act 1976 couldn’t get much clearer, “A person to whom this section applies shall be granted bail …” it goes on to set out a number of exceptions, such as after convictions, but none of the exceptions includes “when there is no solicitor available to make an application”.

The court is obliged, by section 4(2)(a) to consider whether a defendant should be released on bail when “he appears or is brought before a magistrates’ court or the Crown Court in the course of or in connection with proceedings for the offence.”  Thus it is not sufficient for a court to say that they are going to refuse bail because there is no solicitor present to apply for bail.

Part of the point of this action, as I see it, is to show government, the courts and the public what life would be like without defence solicitors in court to assist all those involved.  

What have we learnt from the action so far?  Clearly that without defence solicitors the courts struggle to deal with unrepresented defendants.  More worrying is that without defence solicitors present to remind the courts of their obligations, the courts seem happy to ride roughshod over the rights of defendants appearing before them.

So, next time you are complaining about defence solicitors just remember that they are the ones who ensure that the power of the courts and the executive are kept in check!

Thursday, 4 June 2015

Government to ban psychoactive drugs

Psychoactive drugs

"Drugs are bad, M'kay" so says South Park Elementary school counsellor Mr Mackey.  Clearly, the Home Secretary agrees and has proudly proclaimed that she has banned over 500 drugs in the past 5-years.

I imagine that making all those orders to ban drugs must get quite tedious, which is why Mrs May has come up with the ingenious solution of banning all psychoactive drugs.  The point of this is to prevent people taking legal highs, which are often made by untrained people, working in unsafe environments and using questionable ingredients.  Quite how that doesn't already breach some health and safety law is beyond me, but apparently it doesn't because the government wants to stop people taking them.

As a lawyer, there are two questions I think are important.  First, what is a legal high?  Secondly, what is a psychoactive drug?

To answer the first question, I asked Frank who told me that "'[l]egal highs' ... contain one or more chemical substances which produce similar effects to illegal drugs".

The World Health Organisation defines a psychoactive drug as "Psychoactive substances are substances that, when taken in or administered into one's system, affect mental processes, e.g. cognition or affect."

The Government of the Northern Territory in Australia goes on to say "The term 'psychoactive drug' is used to describe any chemical substance that affects mood, perception or consciousness as a result of changes in the functioning of the nervous system (brain and spinal cord).
"Psychoactive drugs are divided into 3 groups:
  • depressants: they slow down the central nervous system; for example: tranquillisers, alcohol, petrol, heroin and other opiates, cannabis (in low doses)
  • stimulants: they excite the nervous system; for example: nicotine, amphetamines, cocaine, caffeine
  • A steaming cup of coffee
    Coffee: a popular legal high
  • hallucinogens: they distort how things are perceived; for example: LSD, mescaline, 'magic mushrooms', cannabis (in high doses)."
The fact that alcohol, petrol, nicotine and caffeine are all psychoactive drugs that many of us use every day makes me wonder whether this is the correct way to tackle drug use... by the way fans of anal sex might like to know that poppers are also a psychoactive drug!!  Watch out Ann Summers.

Diphenhydramine is a drug that blocks a neuro-transmitter called histamine in the brain to relax involuntary muscle movements and to help people get to sleep, which is why it is the active ingredient in Nytol.  

Obviously, Mrs May is not about to ban booze, fags, Starbucks and sleeping aids so she'll create a special exception for them.  That's nice, but lets not forget that there are a lot of medical uses for psychoactive drugs that aren't obvious to the average person on the street.  I suspect that if Mrs May does go down this route then she may find herself creating as many exceptions to the new law as substances she banned under the old law!

Group of friends enjoying a beer
Wild-eyed drugs users
I find Mrs May's approach odd for two reasons.  First, the Tories have always struck me as a party that, on the whole, believes in a libertarian style of government - albeit one that at times imposes somewhat draconian rules on people it isn't very fond of.  Secondly, the legal system in England and Wales has always been one that allows people to do whatever they like until such time as the law says an activity is banned.  Continental systems are often the opposite in that they have a legal code that regulates what can be done by an individual.  So, it seems odd that a famously anti-Europe party seems to be driving us toward a more European style of law making.

My personal view, is that the UK should follow Portugal by effectively decriminalising drug use while simultaneously bolstering support services for those who want to stop using drugs.  I think that this offers the best way to a) cut down on drug related crime; b) regulate and thus make drugs safer for users; c) rather than draining money from the economy through law enforcement, courts and prisons, drugs users could contribute to society by paying tax on their drug use; and d) it will make people more likely to seek help to kick their habit if they know they will not be prosecuted and that there are services out there that can help them.

Wednesday, 6 May 2015

Sexting teens “at risk of child porn charges”

Does sexting put teenagers at risk of a criminal conviction?

Yesterday, after appearing at Highbury Corner Magistrates’ Court, I stopped on the way home at the motorway services for some lunch.  As I enjoyed some extra hot chicken, macho peas and sweet potato wedges (anyone want to guess which restaurant I stopped at?) I read the i newspaper, which is a concise edition of the Independent.

On page 15 is a story with the same title as this blog post.  The point of the story is that teenagers are prone to taking selfies and, in some of those selfies, said teenagers neglect to wear any clothes.  The story says, [c]urrently a teenager younger than 18 who takes a nude picture of themselves is technically guilty of creating child pornography.”  Later the story continues, “… a Nottingham schoolgirl received a police caution after sending an explicit photograph of herself to her boyfriend…”

For anybody who doesn’t know, a police caution is a form of case disposal in which the suspect confesses to an offence.  A caution should only be administered where the suspect would be likely to be convicted if the case went to court – at the very least I’d contend that conviction has to be at least possible in law.

So, what is the law on child abuse images?  You’ll note I’m not talking about “child porn” – pornography is something adults make and use.  When you start abusing kids and taking pictures it ain’t porn it’s pictures of children being abused!

It is an offence under section 1 of the Protection of Children Act 1978 to take, permit to be taken, distribute, possess or publish any indecent photograph of a child, which the Act defines as somebody below 18-years-of-age.  There is a defence if the people involved are married, because of course a 16 or 17-year-old is both above the age of consent and is allowed to marry – this may make you wonder why this protection was necessary or why, if it is necessary, the Government of the day did not raise the ages of consent and marriage but there you go.

As you all know, the law does not stop at mere Acts of Parliament – we also need judges to interpret those Acts and tell us what they mean, because Parliament isn’t always good at making its intentions clear.

In 1885, Parliament passed the Criminal Law Amendment Act that made it a crime for a man (or boy) to have sex with a girl under the age of 16-years.  In 1893, Jane Tyrrell was aged between 13 and 16-years when she agreed to have sex with Thomas Ford.  As any good Victorian prosecutor would do, she was charged with aiding and abetting his “having unlawful carnal knowledge of her” and she was convicted at the Old Bailey.

Jane Tyrrell appealed her conviction in a case known as R v Tyrrell [1894] 1 QB 710.  The Crown Cases Reserved Court (a now defunct Victorian criminal appellate court) reached a unanimous decision and quashed her conviction.  In giving judgment Lord Coleridge CJ pointed out that the intention of Parliament in passing the 1885 Act was to protect women and children (he actually said the Act “… was passed with the intention of protecting women and girls from themselves. He used that line twice.).  He concludes that “… it is impossible to say that the Act… can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.”

Matthew, J. was even clearer in condemning the prosecution’s position when he said, “I am of the same opinion.  I do not see how it would be possible to obtain convictions under the statute if the contention for the Crown were adopted, because nearly every section which deals with offences in respect of women and girls would create an offence in the woman or girl.  Such a result cannot have been intended by the legislature.  There is no trace in the statute of any intention to treat the woman or girl as criminal.”  Incidentally, Victorian judges were far more succinct than their modern counterparts – that is word for word the entire judgment by Matthew J!

So, we need to ask ourselves whether, in passing the Protection of Children Act 1978 Parliament intended to criminalise the very children it was seeking to protect?  I think the answer to that is an obvious no – just look at the name of the Act if you don’t believe me.

If Parliament did not intend to criminalise those children then you would expect any prosecution to be thrown out under the very clear principle in Tyrrell (which was followed by the Court of Appeal in R. v Whitehouse (Arthur) [1977] Q.B. 868) and thus you would have to contend that it would be impossible for any court to convict the Nottingham schoolgirl discussed in the newspaper story.  If it is impossible to convict then there can be no basis for the police offering a caution and absolutely no excuse for a solicitor advising the girl to accept said caution.

I intend to write to the i newspaper and urge them to speak to the family of this girl and have them take some proper legal advice on removing this caution because I cannot see how it can be allowed to stand.