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.) "

Monday, 16 June 2014

Revenge Porn

Revenge Porn

Julian Huppert MP, a Liberal Democrat Member of Parliament, has called for a new law to outlaw “revenge porn”.  Now for those who don’t know, revenge porn is the name given to the publishing online of intimate photographs of an ex-partner for the purposes of taking revenge for some real or imagined offence by the “victim”.

Mr Huppert correctly points out that “[l]ives can be ruined, personal relationships destroyed and jobs lost”.  That’s terrible, but it raises a couple of important questions: a) does the harm necessitate yet another criminal offence?  And b) is the criminal law an appropriate tool for dealing with this type of behaviour, i.e. should “revenge porn” be a crime?

Over the past 20-years or so, it has become very trendy for Governments in the UK to create new criminal offences – I believe that by the end of the last Labour government they had created more new crimes then every other government before them put together!  As a student barrister, I was taught that going to law, i.e. suing somebody, should be a last resort.  Equally, creating a new crime should be a last resort for a government.

Let’s have a quick think about what “revenge porn” actually is.  These are photographs of people, usually but not always women, in intimate situations – they may be straightforward nudes or photographs of the individual in flagranti.  They are images taken with the person’s permission; if they were not then taking the photographs would already be a crime under section 67(3) of the Sexual Offences Act 2003.  They are photographs of adults; again, such photographs of people under 18-years of age are already criminal.

Taking a common sense approach, we all know that if we allow somebody else to have an intimate photograph of ourselves then we are taking a risk that the image will appear online or will be seen by somebody else – whether deliberately, accidentally or as a result of the device they are stored on being stolen.  To my mind, criminal law is very much a bandage for covering a wound.  It is not great at preventing crime happening… if you don’t believe me then take a look at how many crimes happen every year, all committed by people who have not been put off by the illegality of their actions!

Prevention is far better than a cure.  It occurs to me that children should be taught to think their actions through and consider what the consequences of an action might be.  Thus, when they reach their late teens (and even far greater ages – anybody remember Leslie Grantham?) they might consider the possible consequences of sharing these types of photographs and not do it!

In addition, we might try teaching children that when somebody shows a great deal of trust in us we should not break that trust.

One of the things I encounter regularly and which I see as a major problem in our society is the abdication of responsibility.  I represented somebody at trial once who took a taxi to court each morning.  He was on benefits and eventually ran out of funds for his taxi.  Rather than accept that he should have just taken a bus the short distance from home to court he blamed the court for not paying for his transport!  When I did legal aid work, I regularly came across parents who blamed teachers, police, courts and anybody but themselves for their child’s inability to accept authority.  Duty solicitors will recognise the type who shows up at court for their trial having done nothing to prepare their case or get a solicitor and expect to rely on the duty only to become angry when they find the duty won’t help them.

Politicians add to the sense that everything wrong in your life is somebody else’s fault with constant calls to criminalise every type of reprehensible conduct.  Ultimately, “revenge porn” photographs are pictures that an adult has agreed to allow somebody to take or keep.  Quite frankly, if you are old enough to vote then you are old enough to know that when you take a picture of your tits, balls or whatever there is a chance it will end up on the internet and old enough to make that decision.

Turning back to the two questions I originally posed myself: does the harm necessitate a new criminal offence?  I answer this in the negative.  There is potential for harm to the person in the photograph but the harm is obvious and easily foreseeable at the time the photograph is taken.  The people we are talking about are adults with the power to join the army, marry and vote at elections, if they cannot weigh up the risks and benefits then they shouldn’t be allowed to leave their house in the morning!

The second question was: is the criminal law an appropriate tool for dealing with this type of behaviour?  Criminal law is a sledgehammer that should be used in appropriate circumstances.  It is not good at shaping behaviour.  Would a criminal offence stop the photographs circulating online?  Not a chance.  Would it stop an angry ex-boyfriend who feels he’s been wronged posting a photograph online?  No, it doesn’t stop people committing other crimes so why would it stop this?


We each have decisions to make in life.  We each know the risks and benefits of each decision we take.  Each one of use must accept that we are responsible for those decisions and their foreseeable consequences.

Thursday, 5 June 2014

Criminal property

A real life burglar... no idea why police can't catch them given they all
wear stripy tops and carry bags marked "SWAG"

Tomorrow I am at a west London Crown Court starting a trial for possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002.  Let me begin by assuring you that this is a provision that does two things: a) it really pisses me off; and b) it shows why the legislature should not put its faith in the prosecuting authorities only using criminal offences for the purpose the legislature intended.

My case is straightforward, prosecution say my guy has a stolen laptop in his possession and that he knew or suspected it to be stolen.  If they are correct then he is guilty, if he bought it honestly then he is not guilty.  Easy.

You may be forgiven for thinking that possessing stolen property is an offence called “handling stolen goods”.  If you thought that then you are correct, section 22(1) of the Theft Act 1968 reads:

“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be  stolen goods he dishonestly receives the  goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.”

So, to convict somebody of handling the prosecution would have to prove that the laptop was stolen, that he knew or believed the goods to be stolen and having such knowledge dishonestly receives the goods.  The dishonesty part is important here; let us say that John offers Mark a laptop, which Mark recognises as having been stolen from Lucy.  Mark agrees to buy the laptop from John so that he can return it to Lucy.  In those circumstances, he is accepting stolen goods that he knows to be stolen but he is not acting dishonestly so he is not guilty of an offence.  Obviously, if he intended to keep the laptop rather than return it he would be acting dishonestly and would be guilty of handling.

Now, let us turn to section 329(1) of the 2002 Act, which reads:

“A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.”

Section 329(1) creates three ways in which an offence can be committed, i.e. by acquiring, using or possessing criminal property.  This section must be read in conjunction with section 340(3), which defines “criminal property”:

“Property is criminal property if—
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.”

So, to prove an offence of possessing criminal property the prosecution need only to prove that the defendant had possession of something that is the “benefit” of a crime and the defendant needs to suspect that the property represents such a benefit.  Because it is much easier to prove a suspicion than a belief, as required for the Theft Act and because there is no need to prove any dishonesty at all the prosecution find it much easier to secure a conviction for possessing criminal property than for handling stolen goods.  In our example with John, Mark and Lucy, Mark would be guilty of possessing criminal property even where he intends to return it to Lucy because there is no need to be dishonest.  Mark might well have a defence, but remember in the Theft Act the prosecution must prove dishonesty, there is no requirement for Mark to prove anything.  In the possession offence, it is for Mark to prove his defence, so we can see that this offence effectively reverses the burden of proof for Mark.

Like me, you may be thinking that describing a stolen laptop or TV as “a person’s benefit from criminal conduct” is a bloody odd thing to do.  The wording looks daft as a brush for a very good reason; section 329 is designed to unify and replace old offences under the Drug Trafficking Act 1994, Criminal Justice Act 1988 and various offences relating to Scotland and Northern Ireland.  When Parliament sat down to write this piece of legislation it was trying to bring to justice drug smugglers, gangsters and those who work for them ferreting away their ill-gotten gains.  In other words, Parliament’s intention was to prosecute money launderers.

You can see this clearly when you look at the defences to possession of criminal property, which include making an authorised disclosure to the authorities before taking possession of the criminal property.  Thus if you are a lawyer who is holding money for a client you suspect may have got it from crime you can report this to the police before you take the loot and your back is covered… well until your gangster client finds out and you wake up with a horse’s head on your pillow!  Another defence relates to crimes committed overseas where the activity was lawful… these are not defences that are ever likely to apply to stolen TVs and computers!

At no point, did Parliament intend this heavy-duty legislation to be used to criminalise a the type of person who buys an iffy tele from a bloke in the pub… they didn’t need to do that because it was already illegal!

This leads us on to a very important question: why do the Crown Prosecution Service insist on charging inappropriate offences when there are offences designed for the precise facts of their case?  Around 2004, I started to notice handling charges being preferred with possession of criminal property as an alternative count.  It was obviously being done so that if the CPS failed to get home on the proper charge they had the easier one to fall back on.  10-years later and they don’t even bother trying to get a conviction on handling the only reason I can think is that when you have to prove extra points the trial takes slightly longer resulting in higher costs.  So, the prosecution pursue these inappropriate charges simply to save money rather than to see justice done properly.

Does it make a difference in practice?  We’ve already seen that in some cases charging s.329 instead of handling stolen goods results in an effective reversal of the burden of proof thus making it harder for an innocent defendant to prove their innocence.  You’ll also notice that handling and possession of criminal property have a maximum sentence of 14-years-imprisonment, so you might think it a little unfair that the prosecution can get you sent to prison for just as long by using an offence that requires far less evidence.  Also, handling is an offence of dishonesty.  Prospective employers may make a decision about hiring somebody who has proven themselves to be dishonest in the past, whereas possessing criminal property has no dishonesty element to it.

Although this post was written before the start of the trial – I have held it back until the conclusion so as to avoid any problems.

After the case, I spoke to the police officer about why they use money laundering legislation rather than the Theft Act.  He pointed out that for every successful prosecution of Proceeds of Crime Act offences, his team receive a share of any cash recovered.