Wednesday, 16 April 2014

Do I need a solicitor?

People often call me after they've been charged with drink driving to ask for legal advice... makes sense, I suppose.  The one question I get asked the most (except "how much is this going to cost me?") is "Do I need a solicitor?"  Now, I'm an honest sort of chap so my answer is always "yes"... I mean unless you happen to have the expertise to analyse the prosecution evidence, look for holes in it and devise an appropriate defence or put together a well crafted speech in mitigation that is.

A few months ago a lady contacted me looking for some advice and somebody to help her minimise her sentence after she was charged with being drunk in charge of a motor vehicle.  Convinced she had no defence all she wanted to do was plead guilty and take the punishment that was coming her way.

When I spoke to her and looked at the evidence I quickly realised that she had been in a private car park that did not fall within the legal definition of either a road or a public place.  I took a visit to the scene of her arrest, photographed the area, took statements and evidence from her, her partner, the owner of the land and the company controlling the car park.  We put together a defence bundle that included the statements, photographs, architects plans for the whole estate and various documents proving ownership and layout of the car park.

Sure as night follows day, the prosecution looked at the overwhelming case against them, concluded that they could not possibly prove the allegation and discontinued the prosecution.

This lady had been about to take the driving ban and a community order requiring her to complete unpaid work (given her high reading that was the inevitable outcome).  Instead, she took legal advice from somebody who understands this complex area of law and is now still free to drive on her clean licence.

One of the reasons I gave my up legal aid practice was that with funding so low it had become impossible to properly prepare cases for trial - many firms I knew were operating with very high numbers of unqualified "lawyers" preparing cases with little or no supervision from experienced solicitors.  In order to maximise profits, many solicitors were taking up trial advocacy despite having little or no desire to do that work. 

The case I described above involved three meetings with the client, a visit to the scene of the alleged crime, hours considering the evidence of both the prosecution and defence and more time spent preparing submissions to the prosecution asking them to abandon their case.  Currently, the standard fee for this case would be £279.45, which includes all court appearances, preparation, travel, waiting and the recent 8.75% reduction imposed by central government.  I want to be very clear about this: undertaking this level of work for that fee would make this a loss making case for any solicitor.  It is simply not possible to conduct the work required for that fee!  So, would any sensible businessman or woman repeatedly carry out work that loses them money?  The answer has to be no they would not because to do so will put them out of business.  So, could you expect your case to be properly prepared under legal aid?  I'll leave that to you to decide.

That £279.45 fee is due to be cut again to £254 soon... can a firm make a profit on that case?  Yes, they simply adopt the pile 'em high, sell 'em cheap method of business, a bit like CostCo does.  You simply take the case in, stick it on the pile doing the absolute minimum work on it - hope the client obtains the necessary evidence for you, send it off to trial and hope for the best.  Even on that method I suspect profits would be slim.

I think my point is two-fold.  First, legal aid cuts affect everyone because they drive down the quality of justice that you can expect to receive in this country if you find yourself accused of a crime you did not commit.  Second, if you're in trouble for a motoring offence then contact me!

Sunday, 23 February 2014

Criminals to pay £600 toward cost of prosecution

Chris Grayling MP, our Lord Chancellor and Minister for Justice has announced that people convicted of crimes in the criminal courts (i.e. criminals) will be made to pay £600 each towards the cost of prosecuting them.

It’s a policy designed to garner headlines and popularity in the right wing press (leadership bid in the future I wonder) rather than one actually intended to bring in any money… at least I hope that’s what it is otherwise Mr Grayling really is as badly informed about the Criminal Justice System as everybody says.

The policy is wrong for two main reasons.  First, if you believe that criminals should pay the costs of bringing the case against them then why not charge them the actual costs of doing that rather than an arbitrary £600?  A simple shoplifting may well cost less to bring to court whereas a fraud could cost thousands of times that £600 figure.  So, from an ideological stand point it makes no sense.

At this point it’s worth declaring my personal opinion, which is that if a criminal has the money to pay the full costs against them then I believe that they should be charged the full cost and not an arbitrary lower or higher figure.  The point there really is if they have the money.  “You can’t get blood out of a stone” is a very true saying and brings me neatly onto my next reason for saying that this policy is a headline generator not a serious policy.

A quick Google search shows that the courts are already imposing fines, costs and compensation on criminals that will simply never be paid back.  In 2010, that figure stood at£1.3bn.  In October 2012, Francis Maud MPset out a plan to collect on the £20bn of money owed by individuals to thegovernment – the majority of that money has nothing to do with the courts.  So far as I am aware nothing has happened and there are still over a billion pounds of unpaid court fines, costs, etc owing.  In fact, so little has changed that the MOJ (Grayling’s own Ministry) wrote off £75M of unpaid fines inOctober 2013, which despite Mr Maud’s new collection strategy is a 20% increase in debts written off on the previous year and 50% on the year before that.

Currently, a guilty plea will attract a costs order of £85 and a conviction following trial can range from around £285 - £600 depending on a lot of factors.  The Government can’t collect that.  How will increasing the costs charged solve that problem?

As a final point, it’s worth contrasting this announcement with costs rules, introduced by this Government, that prevents those wrongly prosecuted (in other words the innocent) from reclaiming their costs in proving their innocence from the Government that falsely accused them.

Friday, 17 January 2014

To plead or not to plead

This has nothing to do with the post but I thought it was funny
From the National Office of Importance

I represented a defendant today who was accused of being drunk in charge of a motor vehicle, which is essentially an offence the police can charge where they cannot prove that somebody has driven or is about to drive.

The scope of the offence is very wide, essentially you are guilty if you are a) over the drink driving limit; and b) in charge of a motor vehicle.  So, in theory if you have a few drinkies at home and your car is parked outside you could be guilty of a drink driving offence.  Obviously this would be both silly and unjust, so there is a defence built into the statute that you are not guilty if there is no likelihood of you driving the vehicle while over the drink driving limit.

In today’s case, this defence was wide open to my client.  I won’t bore you with the full details but essentially the client states that he was out drinking with his girlfriend and friends.  She let slip that she had been sleeping with somebody else behind his back and in a drunken fit of emotion he returned to his car, punched it once or twice then sat in it smoking for about 15-20 minutes after which time the police arrived and arrested him for being drunk in charge.  Police attended as somebody saw him punch the car and calling the police thinking he was a vandal.

Now, whether you believe him or not is irrelevant because we don’t know if it’s true or not; all we know is that he insists that it is the truth and that his account gives him a defence.

He decided to plead guilty, not because he accepts that he was going to drive but because he took a commercial decision that the cost of fighting and winning the trial was greater than the cost of pleading guilty at the earliest opportunity. 

Under the old system, a defendant who wins his trial would have had all of his reasonably incurred costs reimbursed from central funds (which are the Government’s pot of cash for paying out legal costs in cases they lose a case).  The new system; however, limits the amount of money that a defendant who is acquitted of all criminal allegations can expect to get back.

In this case, the defendant decided that the risk of not getting his money back following a successful trial outweighed the consequences of pleading guilty, losing his driving licence for up to six-months and accepting his first criminal conviction.

I can’t be the only one who thinks that the purpose of the criminal justice system is, as the Overriding Objective in the Criminal Procedure Rules says, to convict the guilty and acquit the innocent.  It’s one thing for a business to make commercial decisions whether to defend a case against themselves in the civil courts entirely on the money but it is not how the criminal courts should be run… not in my opinion at least.

Tuesday, 14 January 2014

What don't you like about human rights?

Viscount Rothermere (then owner of Daily Mail and
Daily Mirror) meets Adolf Hitler

The past few weeks have been mildly interesting if you like reading about human rights and why we shouldn’t have them.  The idea of people arguing that they shouldn’t be entitled to human rights always reminds me of a friend of mine who hates the idea of consumer rights, not because he runs a business but on principle; not that he lets it stop him exercising his consumer rights when it suits him.

My friend also hates human rights.  He doesn’t dislike them or disagree with them, he hates them.  Like many people who despise the notion of human rights he is also passionately anti-Europe (although unlike most people he understands that the European Union has nothing to do with the European Convention on Human Rights).  Also like most people who hate human rights, my friend can’t say which of the individual rights he would like done away with (and he does know them all being a law graduate from King’s College London and the University of Law).

The rights and freedoms protected by the ECHR are:
1.       Right to life;
2.       Prohibition of torture;
3.       Prohibition of slavery and forced labour;
4.       Right to liberty and security;
5.       Right to a fair trial;
6.       No punishment without law;
7.       Right to respect for private and family life;
8.       Freedom of thought, conscience and religion;
9.       Freedom of expression;
10.   Freedom of assembly and association;
11.   Right to marry;
12.   Right to an effective remedy (for breach of ECHR); and
13.   Prohibition of discrimination (so far as enjoyment of rights are concerned).

When considering whether we agree or disagree with anything in law it’s always worth putting yourself or a loved one in the position of the parties involved.  So, imagine which rights you’d happily be denied to you or your children?  Would you deny your son the right to life?  Would you deny your daughter the freedom from torture?  Maybe you’ll happily see her sold into slavery, provided she’s neither tortured nor killed?  Does the local bobby think your son is a bit of a chav?  Maybe you’d be happy to do away with the rights to liberty and a fair trial so the police could lock him up indefinitely without trial?  No punishment without law means an act has to have been a crime at the time you did it for you to be convicted of a crime.  Let’s imagine you invest in a pension fund that in turn invests in nuclear power stations.  The Greens come to power (okay I know this is unlikely) and pass a law imprisoning anybody who has, directly or indirectly, invested in nuclear power, does that sound fair?  I could go on for quite a while in this way.

The most common response to “what right would you do without?” is “I don’t mind the rights just the way they are implemented by judges.”  For the most part this is because the person hasn’t understood the law, the facts or both – or to put it another way, because a newspaper or politician with an agenda has deliberately misreported the case.  As examples, I give you Mrs May and the case where she claimed a judge had allowed somebody to remain in the UK because he owned a cat when in fact the judge had noted the man owned a cat and said that it had nothing to do with his decision.  What about Chris Grayling our Justice Secretary who last year teamed up with the Daily Mail to decry the European Union’s Charter of Fundamental Rights – a document that does not apply to the UK in any event – which he claimed created 54 “new” rights.  In fact it’s a restatement of the ECHR for the most part and a small handful of “new” rights that are, in any case almost all already the law in the UK.  The "new" laws require doctors to obtain consent before conducting medical procedures and ban child labour.

Here’s a good example of some mis-leading coverage from the Daily Mail.  Here’s a couple of highlights.  They claim that the UK has lost 202 cases before the European Court of Human Rights, which is true, although they neglect to point out that the ECtHR has considered 13,515 cases against the UK.  In the original story, the Mail claimed that £4.4M had been paid out in compensation to criminals where in fact they later admitted that the total compensation ordered by the ECtHR is only £1.7M and that this money went to a range of claimants, not just criminals.  Also, the Mail has lumped this story together with two apparently unrelated ones about gas prices and the former Director of Public Prosecution’s incorrect assessment of the law on abortion.  I’d suggest the only reason this was done is to provide a misleading impression to readers and generate further hatred of the human rights that were created after the second world war to protect us all… incidentally, you might recall that the Daily Mail was the newspaper that supported Adolf Hitler and his Nazi Party as he committed the very crimes that led to the creation of modern human rights!

In the past couple of weeks I’ve read some interesting new reasons why we should do away with human rights, the gist of which seems to be that a) Hitler would probably have ignored them anyway so there's no point in trying to have laws that might have stopped him; and b) nations outside of the west do not agree with our western concept of human rights and so they are doomed.  Interestingly, I’ve yet to see any of these people suggest an alternative that they would approve of and that is acceptable to both the west and the east (and I suppose the north and the south).

Human rights may well be the modern morality for a world rapidly removed from the morality of religion.  I am happy to consider some alternative to human rights but I’ve yet to see one that is more acceptable to everybody than what we have now.  Having said that, I do have one alternative: I would be happy to become your leader and I will promise to ensure that everyone is nice to each other and not to kill too many of you when you displease me.  I could be given the title Lord Protector in Perpetuity.  I think I’d make a good leader of the world and moral compass for you all.

Wednesday, 8 January 2014

Britain's deregulation

Ken Clarke - author of the Deregulation Bill

The Government has released the text of the Deregulation Bill, which seeks to simplify regulation across a wide range of industries and professions – everything from driving instructors to sellers of knitting yarn to insolvency practitioners.  Hidden away at section 51 of the Bill is a provision allowing a Minister of the Crown to order that “legislation shall cease to apply if the Minister considers that it is no longer of practical use.”

I suspect that this is probably the most significant power a Minister has ever sought to take for himself in British history.

Currently, if the Government wish to dis-apply a piece of legislation they must pass an Act of Parliament that abolishes the previous law.  This is because Parliament is the supreme law maker so if Parliament makes a law then only Parliament can unmake that law.

As the anti-Europe brigade in the Conservative party regularly reminds us their problem with Europe is that it undermines the supremacy of Parliament, which they say is of utmost importance to our democracy.  So it is surprising that the same Tory party now seeks to undermine the supremacy of Parliament by allowing a Minister to override Parliament and dis-apply a piece of primary legislation.

I’m sure it would never be used say to benefit political donors of course.

A few years ago the Government sought to increase the time a terror suspect could be held by police before charge from 14-days to 90-days.  There was outcry and Parliament defeated that attempt.  Had clause 51 of the Deregulation Bill been in force at the time a Minister of the Crown could have chosen to unilaterally dis-apply the parts of the Police and Criminal Evidence Act 1984 that deal with the time a suspect can be held leaving a situation where there is no time-limit at all!  Had they not been totally crazy they could have then amended the Police Codes of Conduct, which is already within the Minister’s power, to impose their 90-day limit, all against the will of the supreme law maker that is Parliament.

I grant you that this sounds far-fetched but civilised nations turned into barbaric dictatorships within living memory!  While laws alone won’t stop an armed group taking power and replacing those laws; a strong set of laws can help people who oppose the barbaric regimes coming to power in the first place.  I can’t help thinking that had ordinary Germans paid more attention to the plans of Hitler before he took complete control of Germany then his rise could have been averted.

Leaving that aside, what’s the next logical step once this law is passed?  After a couple of years why would the Government of the day not suggest that since Ministers can be trusted to dis-apply laws then why not let them apply new laws?  Obviously, they’d only be allowed to do it when necessary and they’d have to tell Parliament about it before making the law and Parliament could vote against it… if they notice it… assuming there’s Parliamentary time for debate before the time-limit for objection expires – that’s okay isn’t it?

Monday, 6 January 2014

Special measures for witnesses

Following on from my earlier post on the Government’s plans to bring in new rights for victims I thought it might be worth saying something more about the final promise David Cameron made to victims, namely that there would be “more protection for witnesses”.

Since Dave wants to offer more protection for witnesses, I thought it would be interesting to think about what protections already exist and then compare those to what Mr Cameron is offering.  However, we can’t do that since Dave hasn’t offered any firm proposals beyond the vague “more protection for witnesses” promise.  So, we’ll just have to see what currently exists.

Current special measures

A special measure is something that the court can use or do to ensure that a witness provides the best evidence possible.  They apply equally to prosecution and defence witness, although they do not apply at all to the defendant himself.  A witness can avail him or herself of a special measure if they are under 18 at the time of the hearing, lack capacity or are in fear or distress of testifying.  The fear or distress of testifying clause gives very wide scope for anybody who wants to claim special measures to get them… if you say you are scared of giving evidence how could anybody disprove that?

Currently there are a wide range of special measures:
Video link;
Evidence in private (D and lawyers cannot be excluded);
Removal of wigs and gowns;
Pre-recorded evidence in chief;
Pre-recorded cross-examination;
Intermediary; and
Use of any device the court considers appropriate to aid communication.

Screening a witness from the defendant is one of the most commonly used special measures.  A screen is literally erected or a curtain pulled around the witness box so that the defendant cannot see the witness.  This usually has the side-effect that neither the prosecution nor defence lawyers can see the witness either, which can make questioning difficult.

Video-links are a bit like video-phones in sci-fi shows – they rarely work perfectly first time, you regularly get the wrong number (although I’ve never seen a lady fresh from the shower pop-up as in Demolition Man) but when they do work they are quite good.  In a recent case I did, we had a prosecution witness who was too terrified of speaking in front of the jury to speak even behind a screen.  Once we tried the video-link he was able to give evidence, so a success.

Evidence can be given in private, which really means the exclusion of anybody who is not a lawyer, defendant, judge or juror from the room.

Removal of wigs and gowns.  This was done throughout the trial of the James Bulger killers, although that must have been under the judge’s powers to control his own court because the special measures a) didn’t exist back then; and b) do not apply to defendants.

Pre-recorded evidence in chief, cross-examination and re-examination has been possible for nearly a decade now and yet I have never seen (or heard) of it being done.

Intermediaries have been available for a long time but only recently seem to be gaining favour.  An intermediary is somebody who helps a vulnerable witness give evidence, they are there to ensure that the witness understands the question being asked of him and that everybody understands the answer.  I’ve come across a few witnesses who should have had an intermediary but I’ve never actually seen an intermediary in action.

The last special measure for the use of aids to assist communication is something intended for those with disabilities.

There is one other action the court can take to protect witnesses that applies in sexual offence cases and that is preventing the defence asking questions about the complainant’s previous sexual history.  To be allowed to ask such questions the defence must seek permission of the court in advance.

In ye olden days we used to say that a defendant had the right to have his accuser face him and accuse him of a crime, the idea being that it was harder to lie about somebody to their face I suppose.  Almost all of the special reasons change this position so that the accuser no longer has to face the person they are accusing.  Personally, I happen to think that this does make life much easier for the dishonest complainant but I suspect I am in the minority on that one.

What more can be done to protect witnesses?

The main complaint I hear from witnesses is that they dislike tough questions from defence lawyers and, in particular, being called a liar.  I recently cross-examined a man on the basis that he was lying; I know he didn’t like it as he gave me a lot of dirty looks and at one point complained to the judge about me calling him a liar.

Under our current system there isn’t very much that can be done about this because as lawyers we don’t call people liars for a laugh, we do it because our clients say to us “that didn’t happen, he is lying”.  People regularly say that we should have an inquisitorial system like in France.  I hear from fellow lawyers that the French system is horribly unjust.  I also understand that the French do use the same system as us in any event.  Although, the criminal procedures begins as an inquisitorial one, if the defendant insists that he is not guilty then it turns into an adversarial system like ours.

Even if we choose to scrap out current system tomorrow (which to be honest wouldn’t bother me that much so long as I don’t have to spend years learning the new system) I cannot fathom how we can deal with a situation where two people say the other is lying without putting to each of them “you are lying”.

This might sound harsh but let’s remember that 27% of defendants tried in the Crown Court are found not guilty after trial and every one of them plus many of their defence witnesses will have been called a liar by the prosecutor.  Incidentally when I started working in criminal law, a few years before special measures appeared, I was always told that only 20% of Crown Court trials resulted in conviction, which if correct would suggest there has been a huge swing in favour of the prosecution.

What do you think?  What else can be done to protect witnesses?  Should anything else be done?

Sunday, 5 January 2014

Drink driving: proposed sentence increase

As regular readers will know, I run a drink driving solicitor firm and so have a particular interest in drink driving cases, so when I came across the Drink Driving (Repeat Offenders) Bill on the Parliament website I had to say something about it.

Rehman Chishti MP for Gillingham and Rainham has laid the Drink Driving (Repeat Offenders) Bill before Parliament under the 10-minute rule.  Because it is a private members bill there is little chance of it becoming law unless the government decides to allow it sufficient Parliamentary time to progress through Parliament.

Currently people convicted of drink driving can receive a maximum of six-months imprisonment no matter how many times they have been convicted in the past and no matter how high the level of alcohol in their system at the time they drove.

The Drink Driving (Repeat Offenders) Bill will give magistrates the power to send cases to the Crown Court where offenders can be sent to prison for up to two-years.  It’s unclear whether the Bill will convert drink driving into an either-way offence, which means that trials can be heard in the Crown Court as well as the magistrates’ court.  Normally, where an offence carries more than six-months imprisonment it follows that a trial can be heard in the Crown Court.  At the time of writing the full text of the Bill has yet to be published but the summary suggests that the Crown Court would have no power to hear trials but merely to sentence repeat offenders.  That would make it the only offence to be tried only in the magistrates' but with sentence imposed by the Crown Court, which makes me wonder at the quality of the drafting that has gone into the Bill, but time will tell on that front.

I’ve long been surprised by the very low sentences attracted by drink driving offences in comparison to vilification aimed at drink drivers by police and government so I’m not surprised to see a bill like this appear.