Monday, 22 November 2010

Politicians

I try not to pay much attention to politics any more.  I used to love it, but more and more I'm forming the view that politicians are a bunch of lying corrupt bastards.  In fact, I'm so angry at them that I am not attending a party at the Supreme Court tonight as I was worried I might slap Ian Duncan-Smith who is due to be attending.

This week, I have mostly been enraged by Ed Balls and Vince Cable.

You may recall that during the Labour administration they constantly ramped up fear of terrorism and told us that they needed new and ever more draconian powers to curb the threat to our nation.  Since they lost the election, something has clearly changed.  Ed Balls told the BBC that Labour got the balance between national security and civil liberties wrong.  He admits, for example, that his party were wrong to try to pass a law allowing terrorist suspects to be detained for 90-days without charge.  He says they were wrong to try for 42-days.  And, now he says that despite fighting tooth and nail for a 28-day detention limit that was wrong as well and Labour may now back a return to the old 14-day limit.  In fact, he concedes that since the limit was extended from 14-days to 28-days, precisely zero suspects have been held beyond 14-days! 

He said that at the time, the Government was under pressure from terrorist plots.  Does that mean then that the plots have all now vanished?  Is the terrorist threat now at an end?  Or, is this just a very cynical dishonest re-positioning by a politician who recognises that large swathes of the voting public would not trust him or his mates as far as they could throw him?

Incidentally, Mr Balls also gave us a glimpse of how politicians really view crime fighting strategies.  He said that people want more CCTV cameras "because they want to feel safe".  Take note of those words, "they want to FEEL safe".  He's not advocating them because he believes they reduce or detect crime, simply because they make people feel safer regardless of whether or not they are safer.  That attitude of politicians doing things to make it seem like that give a crap is the sort of attitude that has prevented the police and courts from actually being able to crack down on crime.  It's all style and no substance.

My own MP, Vince Cable, has also been at it.  He's been telling us that he did not break any promises by going back on his promise not to raise tuition fees for uni students.  His reasoning seems to be that because he didn't win the election none of the principles he claimed to believe in before matter now.

I also see that Ken Clarke has launched yet another consultation on legal aid.  Despite the last Government spending millions on dozens of consultations (the results of which were mostly ignored completely).  The latest consultation document is 224 pages long plus a quite staggering 558 extra pages of impact assessments.  It's billed as the biggest shake up of legal aid since it was created in 1949 (just like all the other consultations), but in reality it's just about cutting costs, e.g. should "bolt-on" costs for solicitors be reduced by 50%?  I am a solicitor and I don't even know what they mean by bolt-on costs!  I'm going to blog more about the effects of these proposals later, but to summarise most will mean weaker defence teams because firms will continue the growing trend to use less qualified and less able staff to do more and more difficult work.

There endth the rant.

Tuesday, 16 November 2010

Worth it

I have just come across a case where a man with what the police officer in disclosure at the police station called "a serious mental disorder" was arrested at what the officer described as a "care home for the mentally ill" after the man had smashed a window and caused a disturbance.  At the police station, the care home manager indicated that she was happy for this man to return as this was his first violent outburst in 10-years of being in their care.

I don't for a moment seek to criticise the police for the arrest as that removed him from the situation and gave everybody a chance to calm down.

He was interviewed by the police and I can tell you that the advice given was to  "put forward [his] version.  Client is guilty - admits he did break window."   He then went into interview and made a full confession.

For some reason, instead of cautioning or taking no further action in a case where a conviction will clearly serve no purpose a CPS lawyer authorised a charge for criminal damage.  The unsurprising result was a discharge by the magistrates at the first hearing.  The application by the Crown for costs and compensation were both refused as it was clear that the man was too ill to work and had been in care for more than a decade.

I have to ask whether prosecuting what the Crown itself describes as a very sick man, who had been ill for many years, for a relatively minor offence in circumstances where the victim wants him returned to their care ASAP is in the public interest.  What benefit did the public gain from this?  What outcome was the CPS hoping for?

Friday, 12 November 2010

Rape anonymity

I have just read on the BBC news site that the Government has abandoned it's pledge to grant anonymity for men accused of rape.

This was always a controversial  proposal and I was very surprised when it was included within the coalition agreement as it was always something that would attract little vocal support from the public and was always going to come in from intense criticism by a number of women's groups.

Personally, I think that rape is one of the few offences where an accused's identity should be protected.  Not because the identity of the complainant is protected, but because there are real cases every year where either a completely false allegation is made or where the wrong person is identified, accused and subsequently cleared of the offence.

Being falsely accused of rape, or indeed any sexual offence, is a stigma that sticks to the accused even after their innocence has been proven.  Anybody who pays attention to the newspapers and press cannot help but notice that cases making front page news are suddenly relegated to a footnote on page 18, if they are reported at all, after an acquittal.


I acted as Counsel in a fraud case that was briefly very high profile as being the biggest fraud against the UK Government in history.  Sky News followed the case every day taking interviews with the officers so they could make a one-hour documentary on it and it made the front page of a number of national papers.  When we were acquitted, Sky turned the case into a minor part of another documentary and not one of the papers reported our client's acquittal!

Personally, I think that the press should be barred from naming anybody involved in a sexual case (unless such naming is necessary, for example, in order to appeal for assistance locating a suspect, etc.).  Once somebody pleads guilty or is convicted then I see no reason at all that their names and photos should not be published for all to see.

Wednesday, 10 November 2010

Too many law students

As under-graduates are busy causing havoc in London (and incidentally blocking my usual route home) there are growing calls from members of the legal profession to reduce the number of post-graduate students training to become lawyers.

To qualify as a solicitor most people complete a law degree, the Legal Practice Course and two-years of on the job training.  Similarly at the Bar you do your degree, the Bar Finals (they have a new name that I can't remember now) and then one-year on the job training, called a pupillage.  Currently the LPC at BPP Law School costs £12,500 in London and the Bar Course costs an eye watering £14,995.  By the time you get near doing these courses you will have either a law degree, currently costing about £9,000 or a non-law degree (still £9,000) plus the Post Graduate Diploma in Law £8,730.  If I qualified today using the route I took then I would have paid £23,734 just in tuition fees.  That is significantly more than any trainee solicitors will earn on the high street.

Shortly the first degree will cost £27,000 for a three year course, giving a total to qualify as a solicitor of £39,500 (the route I took would cost £50,725).  At a rate of about £250 p/m repayments and ignoring interest completely, a debt of £39,500 will take more than 13-years to repay.  If you pass your LPC when you're aged 23 then you will still be repaying the debt when you are 36-years-old.  Most people by then would have hoped to have bought a house, but what responsible lender will give a loan to somebody with all that debt?

Add to that the unfortunate but simple truth that the vast majority of hopeful lawyers-to-be will never qualify!  Of the 30-odd people in my class on the Bar course just two of us are in practice! This is something that the colleges running the LPC and Bar Finals never seem to mention to their students... at least not before they stump up their first tuition fee payment.

Maybe it is time that students are prevented from undertaking the LPC and Bar Finals until such time as they have secured a training contract of pupillage.  It may not be nice, but it might be in their best interests.  Otherwise there really will be a generation of students with too many useless qualifications and a mountain of debt they will never be able to repay.

Saturday, 6 November 2010

Letting victims down

I spent yesterday conducting the defence in a magistrates' court trial.  This is something of a novelty for me as I rarely venture into mags court trials, although I do a lot of other hearings there.  I just don't like them, they can be very informal and law is often an irrelevancy if you happen to find yourself before an inexperienced bench/advisor.

Yesterdays trial was a long one and, contrary to what I have just said, very heavy on the law.  I have about 6 legal rulings noted in my book given by the magistrates at some point yesterday.  Even though I am contradicting what I said just a moment ago, each one of the legal arguments was complicated but each one of the rulings was detailed, to the point and correct (including the ones I lost).

In the end, I won the trial.  I shouldn't have won though.  At the start of the day the evidence against me was overwhelming, in my opinion.  However, the police and CPS seemed to be conspiring together to let the victims down as much as possible.

At the plea hearing, the CPS indicated they would ask for special measures to make giving evidence easier for the victims because they had said they were afraid of the defendant.  The CPS were also to apply to admit the defendant's bad character. 

Neither was done. 

Yesterday, the court received a message saying the witnesses would not be attending due to their fear of the defendant.  The police had been to take witness statements from the missing witnesses about their fear, which according to the evidence from the officer was mostly based on a claim that the defendant's five-year-old son had said something to the victim's five-year-old son.  I imagine these two normal healthy adults had other concerns but the officer didn't bother to ask about them.

Even though the CPS had known for a long time that neither witness wanted to attend, no effort was made to have their evidence read until the day of trial but which time the application was refused as a) coming far too late; and b) leaving the defendant with no way of putting his case to the witnesses.  Had the CPS bothered to make the special measures applications as they promised then this would have been avoided, they would have given live evidence and I fully expect they would have been believed.

Also, because the CPS didn't bother to make a bad character application, the bench did not hear about his previous convictions for similar offences.

The police who investigated the offence of criminal damage hadn't bothered to take any photographs of the damage or make a note of the damage.  This meant that by the time we got to trial without the missing witnesses the Crown were unable to prove that there was in fact any damage at all!

The officer in the case had attended the scene and taken some photographs, albeit a month after the incident by which time the damage had been repaired.  These photographs would have been very useful to the court, but he decided not to tell anybody about them until after the trial had ended.

The court clerk and I both agreed that it has been a while since either of us have seen a case where the police and CPS have failed so miserably to look out for victims of crime.

Thursday, 4 November 2010

Defence adjournments

Defence lawyers have cases adjourned to increase their own fees.

That's what everybody seems to believe, but in fact it's rubbish.

In the Crown Court solicitor are paid a litigators fee.  The litigators fee doesn't change whether there is 1 hearing or 100 hearings in court.  It does increase if the trial goes on longer than a set time, which varies depending on the offence.  But, importantly the litigator has bugger all to do with how long the trial lasts.

Judges are charged with responsibility for preventing cases going on longer than they should or having more hearings than they should.  If they feel that somebody is causing unnecessary waste then they can disallow that persons fee and even make him pay the costs of everybody else in the case!

In the magistrates courts, solicitors are paid a standard fee depending on whether the defendant pleads guilty (fee of £284.35) or not guilty (£484.60).  There is a higher or lower fee for each and you move into the higher fee if you do enough work.  Most adjournments take less than 5 minutes and you would need  a lot of those to take you from lower to higher standard fee on a trial (in fact assuming an adjournment hearing takes 5 minutes and you need to get to £651 to move from the lower standard trial fee to the higher fee and you are paid the advocacy rate of £62.35 per hour you would need to conduct 126 adjournment hearings to move to the higher standard fee!!)

Legal aid lawyers are not paid for travel or waiting in either the Crown or magistrates' courts.

The reality is that you will be paid more money for a case if there is more work to be done.  So, if there's lots of evidence you'll earn more.  If you simply try to waste time by adjourning everything you'll spend a lot of time not earning anything.

All the solicitors I know operate a business model that aims to resolve cases as quickly as possible so that the firm can be paid and the fee-earners can move on to the next case.

At the moment the best possible case for solicitors from a profits point of view is a case where you are instructed in the police station, the client is charged with a reasonably serious, but not too serious offence, and enters a guilty plea at the magistrates court where is he dealt with on the first occasion.  You don't want the case being committed to the Crown Court because then you won't be paid anything whatsoever for your work in the magistrates' court no matter how many hearings there are!

Oops

I left the robing room at Court today and walked in to the hall way.  Talking in the hallway were two police officers in full uniform.  Before they saw me, one said to the other in a very worried voice, "we're not gonna get away with this".  The other agreed.

Co-incidentally, at the same Court two police officers were being called to give evidence about what they had seen on CCTV.  The only problem in that case seems to be that the CCTV they claimed to have watched in October 2010 was in fact LOST in January 2010...

Tuesday, 2 November 2010

Hints and tips

Once in a while I will be providing useful hints and tips as and when something occurs to me.

Today I have a hint and a tip for defendants in criminal trials.

Hint - Your lawyer knows more about both the law and your case than your friends.
Tip - If you listen to your friends advice over that of your lawyer then expect to end up in prison!

This week I have been conducting a trial at a Crown Court.  For reasons that are beyond me, yesterday the defendant showed up with a friend who insisted that she a) refuse to give evidence in her own defence; and b) call a particular witness.

This causes problems.  First, the defendant declined a solicitor when interviewed by the police and made some damaging remarks that she now needs to explain - clearly she cannot do that without giving evidence.  Secondly, the witness the friend insists is called gave a statement that says the defendant is guilty!

Thankfully, I gave the client my hint and tip last night and this morning she showed up without the friend and ready to listen to sense.