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:

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;
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.

Tuesday, 14 June 2016

Sentencing reforms may lead to more trials

Reducing sentencing discounts will see more trials taking place

I note this morning the Times are reporting on plans by the Sentencing Council to tighten up the time limit for defendants to plead guilty and receive the maximum credit - effectively this will reduce the credit received by many defendants.

Currently, if a defendant pleads guilty he is "entitled" to a reduction in his or her sentence. Now, he's not really entitled to it but in effect almost every defendant will get the maximum discount if they plead guilty at the first opportunity, so "entitled" is a convenient shorthand.

The maximum discount is one-third off the length of a sentence and that drops the closer you get to trial. There was an attempt a couple of years ago to tighten up on this but it seems to have been largely forgotten in the courts I appear in. The attempt was quite silly and saw some very inconsistent and overly rigid approaches adopted. Some courts were refusing the maximum discount unless you made a full confession to the police and others refused to preserve credit where a case was adjourned for the defendant to obtain legal advice or for the prosecution to provide evidence to the defence. The mantra, "the defendant knows if he did it" was wheeled out by magistrates and judges who should know better - particularly because the question is not whether the defendant "did it" but whether the prosecution can prove he did it!

MPs, showing some surprising acumen for once, point out that if the discount is reduced then it removes the incentive for people to plead guilty. This is very true. You only have to look drink driving cases where there is a minimum sentence for offences at the bottom end of the scale and so there is absolutely no incentive for defendants to plead guilty. Many feel that if they're going to be banned for 12 months either way then they might as well stick in a not guilty plea and chance their luck that the prosecution will balls something up and they'll get away with it - it happens more than you might imagine!

So, what will happen if the timetable for pleading and obtaining your discount is reduced? I suggest that the MPs are completely correct in their view that you'll see more trials taking place. Many sensible defendants who have a case that could go either way will balance up the risk of fighting a losing a trial against the sentence they'll receive if they plead guilty.

I have a case at the moment where the defendant thinks he wasn't given the proper warnings and requirements during the drink driving breath test procedure. The prosecution kindly served the evidence, including witness statements and the MGDD/A, the document that records what happened during the breath test procedure. Mysteriously, the pages dealing with the parts of the test that the defendant thinks may not have been done properly are missing - everything is there before and everything is there after! Let's say this chap insists on an adjournment so the missing pages can be served. Many years ago the last Labour government (I think it was they) introduced CJSSS, a scheme that says among other things that a plea should always be taken at the first hearing. So, the court insisted on a plea - to get his papers, my chap can only enter a not guilty plea. This means a trial date will have been set. The CPS serve the missing evidence and it shows that the police did put the required warnings to him. Under these proposals he now has a choice of accepting the significantly reduced discount for a guilty plea or going ahead with the trial. He's already got a date set, has incurred legal costs so why not go ahead he might think? He's nothing to gain by pleading guilty now and there's always a chance a witness won't show and the case against him will collapse.

I'm sure he won't be the only person faced with such a choice.

While I think the MPs are correct about the increase in trials, I think they may be barking up the wrong tree about the need for 4,000 extra prison spaces - maybe. The real problem is that our Criminal Justice System is chronically underfunded and on the brink of collapse. Senior judges are trying to shunt even more work from the creaking Crown Courts back on to the magistrates courts, which are already being crushed under the weight of their own workload. Chuck in an extra few thousand trials (if the MPs reckon 4,000 extra prison spaces then you better bank on an extra 4,000 trials taking place to lead to those extra prison sentences) and you have a recipe that might just push the Criminal Justice System over the edge.

Then again, we'll probably be leaving the EU in a few weeks and I understand from the Leave Campaign that will free up squillions of £££s. Maybe a few quid of that could be chucked toward our justice system - you know the thing that used to be the envy of the world, with all its fairness and what not?

Friday, 27 May 2016

No to a ban on fee charging McKenzie Friends

Ben McKenzie & friend (no relation to the pseudo-lawyers)

I appear to be in a state of perpetual shock and disbelief this week and the Legal Services Board have done nothing to help me out of that state.

Yesterday morning they responded to the Judicial Executive Board’s consultation on the approach courts should take to McKenzie Friends.

What is a McKenzie Friend? I can do no better than the definition given by RobinSpon-Smith of 1 Hare Court so I shan’t try:

“A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions – for example as to questions to put to a witness. Although usually a non-lawyer, the McKenzie friend should not be thought of as a species of lay advocate and has no right to address the court.”

Originally, a McKenzie Friend was literally a friend of a litigant in person who could assist him in court. Or, it might be somebody offering support on behalf of a charity. McKenzie Friends were never intended to become a way for profit to be made.

It's important to note that McKenzie Friends need no qualification, are not regulated and have no indemnity insurance should they make a mistake. There is no system that exists to ensure that a person acting as a paid McKenzie Friend understands the law to begin with much less keeps up to date with changes in law and procedure.

This is a problem because you as a consumer have absolutely no idea whether the person you hand over your money to has any idea what is going on or is actually able to give you the necessary guidance. I recall seeing a McKenzie Friend attempt to appear before Thames Magistrates’ Court in a criminal law case. It was immediately obvious that he was not a qualified lawyer despite his attempt to exercise rights of audience he did not possess. The District Judge quickly noticed the significant errors he made from the start and booted him out of court. He made a comment as he went that was telling – he told the DJ that “I appear in courts every day, nobody else has a problem with me speaking on behalf of my clients”.

Some years ago I came across a group of solicitors who had decided not to renew their practising certificates and operate as a firm of “law advisers” to people facing all sorts of legal problems. I asked why they would do that? The director told me that it was to cut overheads because as lay advisers they did not require insurance or the costs of being regulated. Nor could anybody step in and fine them (or even take over their business) if they made mistakes.

TheLSB takes the view that there is no need to do anything about paid McKenzieFriends. They point to the “significant change” that the justice system is going through – while they don’t say it I’d suggest that the most relevant significant change is the removal of legal aid from pretty much all civil law cases and its restriction in criminal law cases. They go on to talk about a survey that showed “… 64% of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers’ choice should be targeted and based on evidence of detriment.”

For me the idea that people may be going to a completely untrained, unqualified, unregulated and uninsured person for legal advice with their problems is evidence enough of a high risk of detriment that may be caused. Let’s not forget that McKenzie v McKenzie (the case that gives us the name of McKenzie Friends) was a family law case as are many cases now where McKenzie Friends give assistance. Their clients are often fathers desperate to gain access to their children – the sort of desperate people who need proper, professional legal advice from a solicitor who is qualified, regulated and insured against errors.

As the LSB alludes, most of the McKenzie Friends firms on the internet advertise themselves as a direct alternative to solicitors. They point out that their fees are significantly lower than those charged by a solicitor but they make no mention of the limitations of their services or their lack of qualifications to be giving legal advice in the first place. If you look at the comments on this Gazette story you'll see a McKenzie Friend claiming that having no knowledge of family law is no barrier to practising it. To me it reads as somebody having insufficient knowledge to recognise his own limitations - somebody else points out a few of his misunderstandings in following comments (wasn't me).

Ask yourself this – when the government goes to court do you ever see the Secretary of State rocking up with a McKenzie Friend to help out? Of course you don’t. When did you last see a major business send along a director and an unqualified McKenzie Friend to deal with a case? The celebs who seek privacy injunctions never turn up by themselves with an unqualified adviser to steer them through court do they? And why do you think that might be? It’s not because McKenzie Friends offer a cost effective solution and all these people are too daft to see what a good deal it is – it’s because they want quality legal advice from a source they know they can trust, in other words a solicitor and/or a barrister.

McKenzie Friends have their place. Where somebody is genuinely assisting a friend or where a charity is providing support they can be invaluable. But when somebody is conducting a business you have to ask yourself why have they not managed to qualify as a solicitor if they have sufficient legal skills to resolve this problem? If they don’t have those skills, then why would I want to pay this person to advise me in court?

The reason McKenzie Friends are so popular is because solicitors cost too much money and, frankly most of them are hopeless at estimating costs (in my experience at least). The profession must start charging fixed fees – it’s not hard, I’ve been doing it for years and all it needs is a little thought to get your fees correct. Once people see that they can get a proper solicitor for a reasonable fee then paid McKenzie Friends will disappear.