Thursday, 29 December 2011

Appealing convictions

It's been quite a while since I last got around to writing anything so I thought I best start off with something topical.  Then I thought sod that, I'll write about something relevant to me and everyone else can like it or lump it... or I suppose leave abusive comments, although you really shouldn't do that you naughty trolls.

In the modern world a lot of solicitors like to be lawyers and do lawyery things like consider papers, draft documents and advise clients.  I also enjoy that, but I have also come to terms with my additional roles, which include such delights as courier, messenger boy and now long distance delivery driver.

Anyway, the source of this rant comes from the fact that yesterday I ended my Christmas break early, left my girlfriend and our son at her parents to drive for three-hours to Leeds to collect papers for a client's appeal and then drive the three-hours back to my girlfriend's parents to drop the car back to her followed by another two-hours on my bike riding back home (leaving them to enjoy a few more days in Cheltenham).  I didn't particularly mind doing that even though I won't get the £100 back I spent on petrol, nor will I be paid for the time I spent on this mission.  What I did mind though was that when I arrived, the person I was due to meet had "forgotten" to get the papers.  He knew I was coming as I had arranged the meeting with him two-weeks ago and had called him in the morning to remind him.  I offered to drive him to collect the papers, but the person who had them wasn't going to be available for 6 or 7-hours.  So, I drove back empty handed.

This (finally) brings me onto the subject of this post, which is appealing convictions.  In my experience, finding grounds of appeal isn't really difficult.  Either the judge made a mistake at trial, in which case it will show up in the transcripts or he didn't.  Finding new evidence is a far more exciting way to bring about an appeal to that end I have spent days trawling shipping archives at the National Archive in Kew or interviewing witnesses I've found on the internet etc.  I'll even take a weekend out to trace and interview witnesses abroad if need be... I don't even pretend that is a chore!

The hardest part of any appeal in my experience is getting the papers!

In September I went to see two men who both wanted me to appeal their convictions (one for murder and the other for attempted murder) in completely separate cases.  One has papers with relatives and it was for him I went to Leeds.  I thought getting his papers would be easy, but clearly not.  The other had a solicitor at trial who a) is just around the corner from me; and b) by chance used to rent our offices before we took them over... so they are well known to me.  Unfortunately, that solicitor has lost the papers.  The CPS used to be very helpful in this situation and would happily provide any help they could; however, since the credit crunch they now refuse point blank to provide copies of papers (even when I've offered to pay for the cost of copying).

Papers not appearing is a very common problem; usually solicitors just ignore letters asking for papers... we even have a standard letter to send to other firms threatening to report them to the SRA if they don't cough up the papers ASAP.

If you or someone you know has a conviction you want to appeal, then I highly recommend taking action in this order:
1. Find a solicitor you are happy to work with and have represent you;
2. Instruct them and send back all the papers they send to you (this will include an authority allowing your old solicitor to release your papers);
3. Contact you old solicitor and speak with the solicitor who represented you giving clear instructions for him to send on your papers and provide a name and address (preferably a DX address) for the papers to be sent.
4. Check with your new solicitor whether he has received them and if not repeat step 3.

I promise that doing this will take an extra 10 minutes of your time and will mean your case ends (hopefully with a successful appeal) much earlier, possibly months earlier.

Good luck and happy new year.

Tuesday, 1 November 2011

I have found our next Prime Minister

Good news, I have found our next Prime Minister!

Don't worry though, we don't have to abandon elections just yet, because I have a list of three names for you to chose from all of whom are currently unemployed and thus can start tomorrow.

First, is Giles Fraser.  He has been in the news recently as he resigned as Canon Chancellor of St Paul's Cathedral.  He is against violence and so when he become concerned that evicting the protesters from the church yard would end in violence he chose to have no part in it and resigned!  MPs in general take note, this is integrity.

Second up is Fraser Dyer, a Chaplin at St Paul's who resigned because he felt "embarrassed by the position taken by the Dean and Chapter" of the cathedral.  In other words, his bosses made a decision that he could not support on principle so he refused to support it and resigned his post.  Nick Clegg, Vince Cable & other Liberal MPs take note this is called sticking to your principles and being honest about what you stand for.

Last is Graham Knowles who until yesterday was Dean of St Paul's and together with the Chapter took the decision to press for legal action to remove the protesters.  He came to the conclusion that his actions were against his principles and resigned saying he is "no longer the right person to lead the Chapter".  Tony Bliar et al take note of how to deal with mistakes.

So there you have it, three men who have all shown themselves to be principled, honest and who have integrity.  They may not be able to preserve Britain's place in the world as a second-rate power being roughly wagged like a tail by the great body that is the USA but at least they might run the country in a way that puts the subjects of Her Majesty first.

Wiping the slate clean - taking offences into consideration

The BBC are on a mission this week to discuss criminal offences that are dealt with by being taking into consideration, there are articles on their website, it's being discussed on the Today programme and I will be discussing it on Radio 4's Law in Action at 4pm on the 1st and 3rd November 2011 - well I might be if I was interest enough during the interview.  Taking an offence into consideration is the process whereby a guilty defendant can admit to crimes for which they have not been charged on the understanding that they will not be prosecuted in future for that offence.  This helps the police as each offence TiC'd counts as a bona fide detection and thus boosts forces detection rates.

It is not a well understood process, even by lawyers, and many make the mistake of thinking that once you TiC a crime you are safe from prosecution because you can rely on the special plea of autrefois convict - literally instead of pleading guilty or not guilty you enter a preemptive plea of autrefois and must then call evidence to prove that you have previously been convicted of the offence.  However, an offence taken into consideration does not allow the autrefois plea to be raised!  Case law dating back to the 1940's in R v Nicholson (if i remember rightly) has made clear that TiCing an offence does not protect a suspect from being charged later on.  A TiC simply invokes a convention that the Crown will not seek to prosecute in future, although prosecution does remain a possibility in exceptional cases.

In some circumstances it may be possible to argue that the later prosecution is an abuse of the courts process and should thus be struck out.  However, I suspect that this will only be effective where there had been relatively few offences TiC'd and the new offence is not a serious one because then the suspect can argue that their original sentence was inflated sufficiently to punish them for the new offence.  I am not aware of any cases where this has been considered.

I should also point out that contrary to some BBC reports I have seen, suspects do not receive 'credit' for admitting more offences.  In fact, the court will increase the sentence to take account of the TiC's.

Monday, 31 October 2011

Legal aid rules offer modern equivalent of Schrodinger's cat

Sometimes you have to really think about a blog post, other times kind colleagues in other firms helpfully do it for you.  Today, I am shamelessly copying the words of Andrew Port who is a partner at Dexter & Port Solicitors in Reading.  The text below is from his letter to the Law Society Gazette that was published in the 27th October 2011 edition; both he and the Law Society have kindly given permission for me to reproduce the letter here.

"Now that there is no payment under legal aid for magistrates' court work which is committed to the Crown Court, I find myself in a practical equivalent of the paradox described by Schrodinger and his dead or alive moggy.
I have a representation order for a youth charged with two robberies.  The details of the allegation are such that representations have been made to the prosecution that alternatives of assault and handling would be more appropriate.  The court clerk has already made her view clear that, if the charge remains as robbery, she will strongly advise on committal as a grave crime.  If my representations are accepted the case will stay in the Youth Court.
So at this moment in time I am both funded and not funded.  I am certainly legally aided.  But where is the incentive to waste time actually bothering to represent this youth with no previous convictions?  If I attend court, secure an adjournment, make representation and attend court again, only to find I have been unsuccessful, I will be paid not a single penny for the work (not even the travel costs of getting to the court).  If I succeed, I will be paid a lower category 1 fee [DB note: in London this is £284, outside of London I think it is approximately £230].  Where is the incentive to take the risk of non-payment when the interests of justice clearly demand that this individual should have representation?
And when the Legal Services Commission comes to audit me and demands the instant creation of a work-in-progress figure should I refer them to the paradox of Schrodinger's car or just pluck a figure out of thin air?"

Mr Port makes an excellent point.  Aside from professional integrity and the milk of human kindness, why would a solicitor take the time and trouble to undertake potentially complicated pleadings and court hearings to the prosecution where there is a risk that if he fails he will not be paid, which is the current situation!

Before you think that the answer is that you shouldn't try to have a case dropped unless you know it will be dropped, I invite you to think that thought through properly and ask yourself whether if such a case was so appalling the prosecution might never have been brought?

Defence solicitors regularly come into possession of evidence or information that is not available to the police or CPS.  They then present that information to the prosecution along with arguments as to why a case should be discontinued.  Nobody can be certain that they will win (even if they have right, truth, justice and all that jazz on their side).

I'd also point out that this is not like "no win, no fee" litigation in personal injury cases.  In those cases, solicitors are entitled to charge a success fee of up to 100% of their fee on cases that they win.  Here it's a case of win and get paid, lose and don't.

Wednesday, 26 October 2011

Letter to Vince Cable MP about legal aid cuts


I have decided to write a note to my MP about the proposed cuts to civil legal aid.  I don't claim this to be a treatise on the finer points of the cuts, nor do I claim that this is in any way the definitive argument against the cuts, but I do think that it is worth making these points (and others) to MPs if you believe that poorer people should have the right to defend themselves and their rights against those who seek to abuse or those rights.
Urgent
Rt Hon Vincent Cable
House of Commons
London
SW1A 0AA


Date:                     26th October 2011
Our ref:                  nd/
Your ref:

Dear Mr Cable,
Re:         Proposed reforms to legal aid
I write in regards to the forthcoming vote in the House of Commons on the latest round of legal aid cuts.
I am writing to you as I am resident in your constituency and thus you are my MP – my home address is *** yeah like I'm putting that up on a website ***
As you can see from the letter head (this is printed on my firm's headed paper), I run a small firm of solicitors based in a very poor part of London.  I make it clear now that while we do undertake criminal legal aid work we do not undertake any other form of legal aid and so we are not directly affected by these changes; however, I believe that it is important to bring to your attention the very real harm that this Bill will do to many of the people in the area where I work.
Your party leader recently made me laugh when he claimed to be in favour of protecting human rights.  I laughed because he either doesn’t understand what he is talking about or has chosen to ignore the reality of his own policies.
You cannot on the one hand claim to be in favour of human rights while on the other hand you remove the ability of people to enforce those same rights, which is what legal aid is all about.  It is like telling somebody you are in favour of their being alive but at the same time clamping your hand over their mouth to prevent them breathing!  Removing legal aid will simply result in less people being able to enforce their rights and ultimately more people putting up with breaches of their rights.  Your policy will kill the Human Rights Act.
On a more day to day basis, I read how some people make the absurd claim that removing legal aid will simply mean that more people sit down to discuss their problems civilly.  This is nonsense.  All that will happen is that those people who have money will be able to do whatever they like safe in the knowledge that their victims have no recourse to the courts because they simply cannot afford to bring a case.  Even those who bring a case sans solicitor will be at serious risk because of the major financial losses they will suffer if they lose, in the form of their opponent’s fees.
Please do not underestimate the challenge of bringing a case to court.  I am a solicitor; I qualified as a barrister first.  I have rights of audience before all courts in England and Wales, including the Supreme Court.  I have appeared everywhere from Richmond Magistrates’ Court to the Old Bailey and the Court of Appeal.  Yet, I have my own solicitor who acts for me in areas of law with which I am not completely familiar and that solicitor instructs barristers to help me where necessary.  If an experienced solicitor like me isn’t happy to go it alone in unfamiliar areas of law then imagine the terror that might strike into the heart of a man fighting alone for access to his children or a woman who has split from her partner and is trying to keep a roof over hers and her children’s heads.
I get the impression that many politicians live in the hope that solicitors will simply do the work for free, as we in criminal law are being told to do with much of the work we undertake in the magistrates courts.
This overlooks the obvious problem, which is that once legal aid has gone there will be huge gulfs, particularly in poor boroughs, where there will simply be no solicitors firms.  Of course, this won’t affect people in more affluent areas who can afford to pay a solicitor out of their own pocket.  But then, they should not, in my submission, be the highest priority of liberal leaning politicians when taking decisions like these.
We have a large legal aid bill because successive Governments have sought to encourage people to stand up for themselves and have given more and more rights to individuals that can only be enforced through the courts, such as the right to equal pay, rights against discrimination, the right to enjoy family life etc.  Cutting legal aid means undermining all the rights that people have spent years fighting for and means undermining many of the principles that I believed the Liberal Democrat Party stood for.
For these reasons, I must ask you not to support the legal aid bill when Parliament votes on it next week.  I understand that it may be difficult for you to vote against this bill and remain in the Government; however, if you really are a principled politician then it maybe that you have to do what is right rather than what is best for you and your career.
Please do not hesitate to contact me if you would like to discuss any of these points further.

Yours sincerely,
The Defence Brief

Abolishing IPP sentences and missing the point

I read in this morning's Times that Ken Clarke is to abolish imprisonment for the public protection (IPP sentences), which are indeterminate prison sentences - in other words they are a life sentence as an offender must prove that he is safe to be released before he gets out of goal, can pass go and collect £200.

IPP sentences have done an awful lot to overwhelm the Prison Service and Parole Board, and I expect the Probation Service too.  They have, at least, created some much needed work for lawyers and for that I think we must all applaud them (IPPs not lawyers, although if you’re feeling generous…).  Despite the obvious advantages to me and my colleagues, many lawyers have this odd notion that locking people up and throwing away the key isn't the nicest way to treat people.  The people who receive IPP sentences are often not the most serious criminals... if they were then they would have been sentenced to a good old fashioned life sentence, which is a requirement of the Act of Parliament that created IPPs.  I have one client who received an IPP for robbing a man of £10, the force was pushing the victim’s wheelchair a few feet up the road and the theft was taking the £10 note from the man’s shirt pocket.

There are undoubtedly some people for whom an IPP is the right sentence in theory because those people will continue to commit crimes and there is a risk that they will hurt or kill somebody in future.  In theory the IPP allows a person to be held until such time as they have undertaken work and/or treatment that addresses the causes of their criminal behaviour.

The reality of an IPP though is that if you get one then you’ll be given a minimum term that must be served and you can pretty much double that before you have any hope of release. 

The problem with IPPs to my mind is not the sentences themselves - mostly I can see the reasoning behind the judge’s decision to rule that the offender is dangerous, which triggers the imposition of the IPP -  no the real problem, at the point that the Government and some commentators have missed, is that when the Government brought in the IPPs they failed to invest at all in improving the Parole Board so that it had a hope in Hell of keeping up with the huge upsurge in demand for hearings.  They also failed to invest in providing sufficient courses to actually allow prisoners to address the factors that have been said to be behind their criminal behaviour.  At the moment, if you have a 2-year minimum tariff and need to undertake the enhanced thinking skills course, some drug/drink rehab and the anger management course (“Think First”, I think it’s called) then you will only be able to do so if you are lucky enough to end up in a prison that offers all three courses!  If not you will have to make applications to be moved, which takes time and is a very difficult thing to do for somebody who struggles to focus their thoughts and who cannot piece together even a simple strategy for achieving a goal – the clue that they can’t do this is that they have to do the enhanced thinking skills and anger management courses.  There is a very good chance that by the time your minimum term ends that you will not have completed one or all of the required courses, which will result in an almost automatic refusal of parole.  Not that it matters much though, because the Parole Board is so over worked that it’s taking at least a year to have a case listed, which means if you get a 3-year minimum term it’ll be four-years before you get before the Parole Board.

Ken’s plan seems to be to appease the silly old sods - sorry I mean back bench Tory MPs and their grass root support – by “introducing” longer determinate sentences.  This is also silly.

If you are a very naughty boy (or girl) then a nice friendly judge will tell you that you have to go to prison for, say, 6-years.  However, because you had the good sense to instruct me and I told you to ‘fess up you naughty boy, I have managed to secure you a one-third discount from your sentence (although I have to admit that another lawyer could also achieve this result as His Judgelyness is required to discount your sentence in 99.99% of guilty plea cases, I like to think I do it with more style… which is important).  Anyway, because of my excellent work you’re now down to 4-years.  Well hang on a minute DB I hear you cry, I don’t want to be banged up for the next 4-years.  Don’t worry, because it was only His Judgeship who heard the facts and passed sentence and nobody listens to old Judgy.  So, as if by magic (actually it’s by Act of Parliament, but that sounded dull) your four-years automatically becomes 2-years before you’ve even left the building.  Now, my work is done for the day.  But, don’t worry because if you turn over a new leaf and behave yourself inside then you might just be eligible for early release on tag.

Has anybody spotted the clever way that the Government could not increase sentences and yet achieve the same result yet?    You could even have a reward system of earlier release for good behaviour while inside – with the necessary Parole Board investment of course.  Of course, there’s a very good reason why my idea won’t work and that’s because before a newspaper can explain it they have to first explain the current situation.  That’s going to make very dull copy and will not sell papers, so they won’t report it.  This means that Ken doesn’t get his column inches, so gets a telling off from “Call me” Dave.  Because of this the Tory membership will simply see a Government letting people off of IPP sentences and not keeping them locked up.  The lefty papers will take up this mantle and accuse Ken, Dave and the rest of being soft on crime – probably because of the evil Liberal influence – and so they risk losing the next election.  It’s far easier therefore to just do something that requires no explanation in the newspapers beyond “lock ‘em up”.

If Ken or Dave or anybody else would like to hire me as a (slightly angry) consultant to help them formulate policy then I am available at very reasonable rates.

Friday, 21 October 2011

Bent coppers - when is too far?

Claims are flying about that undercover police officers were arrested, prosecuted and convicted while using their cover names in court.

This is serious because if true then the police officer would have not only committed a criminal offence, in one case it is suggested he was convicted of assaulting another police officer, but more importantly if that undercover officer gave evidence he would have taken an oath to tell the truth.  The first question his advocate would have asked him would have been along the lines, "would you please give your full name to the court?"  If he answers with his false name then he is lying to a court and thus committing a further offence of perjury.

I have seen reports that say senior officers authorised undercover officers to stand trial under false names.  If so then those officers are likely to be guilty of a conspiracy to commit perjury or pervert the course of justice.

Some police officers have been known to charge suspects with attempting to pervert the course of justice just for giving a false name when arrested, never mind at trial!

In certain circumstances I can see that it might be necessary to allow a police officer to stand trial under a false name so as not to jeopardise years of careful work; however, that is something that should be brought to the attention of the trial judge so that he or she can make a final decision as to what happens in his court.  If the judge decides that what is proposed is not on then the Crown can make a decision whether they proceed with the trial or protect their operation.  All sorts of reasons can be given for dropping a prosecution and discontinuing will not necessarily raise the suspicions of those being investigated if done properly.

If officers have lied to the courts and have committed violent offences against their own colleagues then you must question whether that officer has any value in the police force even where his actions were 'authorised', albeit in a seemingly unlawful way.  In years to come if I happen to become involved in a case where that officer gives evidence against one of my clients then his previous conviction for assault will come as being relevant because he denied an offence to a court and was disbelieved - in other words he either lied when entering his plea and lied when he gave his evidence (if indeed he did give evidence).  His word as a police officer is simply worthless.

Perhaps more seriously is the culture at very senior levels of the police that these allegations, if true, reveal.  When does the actions of an undercover officer cross the line from being necessary to an investigation to being simply bent coppers?  Are these senior officers actually up to the job of making that decision? 

The Foreign and Commonwealth Office regularly rotates its overseas staff to stop them going native, that is becoming friends with and ultimately more concerned with the needs and wants of the locals where they are posted than with the interests of the UK. 

Where a serving police officer is going around inflicting acts of violence upon other officers - and according to some accounts marrying one of the people he is supposed to be gathering intelligence on - you have to question whether he has gone native.  More worryingly is the apparent inability of his handlers to recognise that this man was going beyond the acceptable boundaries of his operational role.

Some readers may think that I am naive about the realities of undercover work - I am not.  Society faces a simple choice.  You can allow undercover police officers to do whatever they like with little or no outside checks in which case be prepared to see the boundaries of acceptable behaviour move further and further in the direction of what we currently call police corruption and what is today acceptable for undercover work may be what is acceptable for normal bobbies tomorrow.  Or, you can require that serving police officers act within the boundaries of the law that they have sworn to uphold and you can put in place a proper system for scrutinising undercover operations.

Wednesday, 19 October 2011

Riot appeals

In the immediate wake of the riots in August, there was a lot of nonsense talked in robing rooms up and down the country about how OTT the sentences were.  I had a discussion with one barrister who felt that the rioters should have been dealt with like shoplifters and sentenced on the basis of their actions, e.g. stealing a packet of cigarettes, with the courts ignoring the context in which the offences occurred.

Now that a bit of time has passed and the Court of Appeal is starting to uphold the sentences I have to ask whether anybody is really surprised at the sentences that were handed out?

Tuesday, 18 October 2011

Trafficking kids for crime

I saw on the TV last night that Panorama will be presenting a show about how children are trafficked across Europe to beg and steal.

It's nice that the TV and authorities have finally picked up on this problem, indeed the Crown Prosecution Service now has a whole team dedicated to trafficking and a policy about it too.

Trafficking has it's sexy side - by which I mean a side that gets reported regularly, probably because it involves sex, which gives the newspapers the chance to titillate their weird readers and set the tongues of everybody else tutting at the inhumanity of johnny foreigner and/or the vile indifference of men who pay for sex.

What rarely gets reported is the flood of kids who are brought to the UK (and indeed every other European country) so that they can beg and steal.  This isn't reported presumably because then the press would have to side with the feral youth whose crimes they like to gleefully report.  These kids in my experience are usually between 11 and 19 years old - usually toward the younger end as the girls often seem to be married off as they approach late teens.

In my first year of criminal law practice the firm I worked at had a large client base of literally hundreds of kids and young adults who were exclusively female.  They would pick a town or city and then swarm through it picking pockets and stealing from shops.  Inevitably some would be arrested.  A wholly inappropriate adult would turn up to act as the appropriate adult during the police interview.  He (for it was always a he) would be inappropriate because he was usually one of the men controlling the girl who was in custody.

Now I'm not suggesting that these girls were prisoners of the men controlling them for they were not kept locked up, although I'm pretty sure some were beaten for not doing as they were told.  They were children who had been taught to steal from a very young age and were then shipped across Europe (on one occasion they made it to the USA) sans parents stealing everything they could until the courts started to lock them up at which point they would move on to the next country until things died down a bit.

The police were never willing to take any action against the men who were clearly behind the crimes.  On the one hand I can understand that as they would probably never have got the girls to give evidence against the men.  I suspect that the girls had no faith in the police either - on one occasion I recall a group of girls aged 11, 13 and 15 none of whom spoke English all being strip searched without an appropriate adult present or an interpreter.  The police literally had to pull the clothes off of them to conduct the search.  I asked the officers how forcibly stripping a child naked could possibly outweigh the tiny risk of them having a mobile in their knickers (which they did not have incidentally), but was met with a wall of indifference.

I've said it before, if you want to cut crime then you must attack the causes of that crime.  In this case, the place to attack is the men behind the gangs not the children committing the obvious crimes... it would be like fighting human trafficking by locking up the sex slaves for prostitution!

Tuesday, 11 October 2011

Citizenship tests

I fear I may have to leave the UK and settle elsewhere as I have just failed the citizenship test on the Guardian website.  Although, I would like to point out that the question about whether you can attend hospital without a GP's letter for a non-emergency is wrong on at least two levels.  First, my GP has never given me a letter to take to the hospital; and secondly, I know that my local hospital runs walk-in sexual health clinics that do not require a referral.  I believe they also operate some post-natal clinics on a similar basis.

The questions weren't what I expected and I did have to guess at a few of them... did anybody manage to pass without cheating or getting lucky?

Paranoia

I know the dangers of commenting about a news story and that sometimes facts come out later that put an earlier story into a new light.  But, I do have to question the grounds on which security guards would decide to challenge somebody for taking a photograph of his own child.

Monday, 10 October 2011

Search terms

It's always interesting to see how readers have come across this blog.  One chap has found me using the words "piss brif".  I'm not sure what he was looking for (maybe a lawyer to defend a gross indecency charge?) but I hope he found something worth reading.

Friday, 7 October 2011

New driving offences proposed

I understand that the Government are considering introducing a new offence of causing serious injury by dangerous driving, which I suppose means I'm going to have to update the firm's website (again).

As a fellow motorcyclist, I have sympathy for Darren Braund who was injured when a driver pulled in front of his motorbike causing him to collide with her car but looking at the description of the offence and the sentence I have my doubts whether this new offence would have made a difference for Mr Braund as it looks like the car driver was convicted of careless driving rather than dangerous driving, in which case the new offence wouldn't apply to her.

Dangerous driving is defined as driving that falls far below the minimum acceptable standard expected of a competent and careful driver; and it must be obvious to a competent and careful driver that driving in that way would be dangerous.

Whereas careless driving occurs when the way somebody drive falls below the minimum acceptable standard expected of a competent and careful driver.

I'm a bit old fashioned when it comes to defining offences.  I still subscribe to the maximum "actus non facit reum nisi mens sit rea", which broadly speaking translates to "the act is not culpable unless the mind is guilty", i.e. you must do the act and mean to do it before you are guilty of an offence.  There seems to be a new trend emerging for defining an offence by the harm caused rather than the intention behind the act.  Even murder requires both a death and an intention to kill or cause GBH (by which is meant really serious harm), if you lack the necessary intent then you are not guilty of murder.  I haven't seen a draft of the proposed new offence but I can only assume that it will require a. dangerous driving; and b. that serious harm occurs as a result of that driving.  Thus there is no need to show that the offender intended to cause injury.

Personally, I think that a more elegant way of dealing with the problem is to increase the sentence for dangerous driving from two-years to five-years (or whatever is deemed appropriate) and then allowing courts to impose higher sentences where serious injury is caused.  In fact, the case of R v Cooksley and others [2004] 1 Cr App R (S) 1 the court held that causing serious injury would be just such an aggravating factor.

I assume that the argument behind creating a new offence will be that if somebody is driving dangerously then they must realise that there is a risk of causing harm and so they should be liable for a higher penalty.  But, for me that doesn't get away from the fact that the only difference between two cases could be that one person was lucky and the other was not.

Maybe it's a discussion for academic lawyers who no doubt have a much better grasp of these things than a mere practitioner like myself.

On a side note, I have started a new blog called Motoring Lawyer... I probably should have posted this piece there.

Thursday, 6 October 2011

Tesco Law

I just caught the end of BBC Breakfasts discussion on the new Legal Services Act 2007, which changes the way solicitors firms are owned.

This probably sounds like one of the least exciting topics in history, but it is important to everybody.

Currently certain activities can only be carried out by qualified solicitors and for good reason.  In my own main practice area, criminal law, many people have this idea that what criminal lawyers do is very easy.  In fact, a lot of other lawyers think it's easy and will happily dabble in criminal law, often to the detriment of their clients.  In one case in which I acted, a co-defendant's commercial solicitor got involved in a cash forfeiture application.  On one course I attended that solicitor's actions were described as "stupid" and "ill-considered".  The solicitor didn't understand what he was doing and caused a loss of tens of thousands of pounds to his client.  My client avoided that unnecessary loss.  If that can happen with a qualified lawyer, imagine how your life could be ruined by a completely unqualified person conducting a criminal law case!

I recently took some advice from a marketing expert.  He was very nice and a great marketer.  But, he completely failed to understand that a solicitor owes a duty to his client and that a solicitor must put his client first - that means ahead of the solicitor's own interests!  All of the ideas that my marketer devised would have generated a huge client base but I had serious concerns about how he intended to achieve it and so I refused to go ahead with any of his schemes!

Once companies like Tesco and the Co-Op own law firms does anybody seriously think that their drive for profit will mean that they put their customers first?

We expect that most companies coming into the market will follow the lead of the Co-Op and target will writing, personal injury and probate.

The will writing sector is already in crisis and co-incidentally has been unregulated for years.  Yes, if you aren't worried about inheritance tax, what happens to your children or ensuring that your will is going to be valid you can buy a will online for less than £30.  But, I wouldn't recommend it.  Because people think that will writing is easy and anybody can do it there has been widespread criticism of will writers who require no legal qualifications to set up and get into business.  Let me put this very simply.  If you have any assets and die without a properly drafted will then there is a good chance that your assets will go to a probate lawyer as your family (or others) fight over what you leave behind.  I have one client who stands to inherit about £5,000.  His father died without a will and now the family are fighting over the money despite being warned several times that by the time they finish fighting they will have spent their entire inheritance on solicitors, barristers and court fees!





Things have got so bad that there are now proposals to regulate will writing services, just as claims handlers in personal injury are now regulated by the MOJ after the free for all that occurred in the 1990s and early noughties.

Will other parts of the legal sector go the same way?  Do you really want a big company that is solely driven by profits handling your loved one's estate after their death?  I'm not suggesting that solicitors are for profit businesses, but a solicitor owes a client a duty to put that client first.  Breaching that duty can and does lead to solicitors being struck off and losing their career.  There are very real and serious consequences for solicitors personally who break the rules.

While I'm sure that the Co-Op have only their client's best interests at heart, it's worth noting that the very nice man who heads up their legal division, which will be providing solicitor services to the public, isn't even a solicitor!

Tuesday, 4 October 2011

Amanda Knox and the English appeal system


We wake up this morning to the news that Amanda Knox and Raffaele Sollecito have been cleared of the murder of Meredith Kercher on appeal.

Having read the news this morning I cannot say exactly why they were cleared because I wasn’t in court to hear the ruling and the press are reporting some very bizarre factors that I cannot imagine were on the minds of the judges.  For example, the BBC  in its 10 factors that helped Knox’s case, lists such things as a “PR campaign” launched from Seattle and the presence of supporters in the courtroom.  I can confidently say that neither of these things would be likely to have any impact upon an English or Welsh court.

Perhaps the most informative thing in the BBC reports are that the Italian justice system has a very lenient appeals system where the court simply investigates the weakest aspect of the prosecution case.  If true then it certainly does explain why Italy has a very low prison population.

In the UK, the appeal court will consider the entire case not just the weakest or strongest aspects of it.  In England and Wales, the Court of Appeal will only interfere in a verdict if they find that the conviction is “unsafe”.  A conviction can be unsafe for any number of reasons, but broadly the two big headlines are new evidence and an error in the trial process.

New evidence must be something that is genuinely new and was not available to the defence at the time of the trial.  This is a very difficult test to overcome.  Often there will be evidence available to both sides that is not used for tactical reasons in the trial.  When this happens the Court of Appeal will assume that the decision not to use the evidence was taken either by the defendant or on his direct instructions.  Showing that this is not the case means saying that your trial lawyers either misled you or did not do their jobs properly.  You may not be surprised to hear that conviencing a bunch of senior lawyers that another bunch of senior lawyers are incompetent isn’t easy and I say that as somebody who has summoned a client’s former defence team (including two QC’s) to give evidence at the Court of Appeal!  If the court decides that he evidence was available and that the defendant chose not to use it then the evidence is highly unlikely to be admitted and the conviction will stand.

An error in the trial process could be anything from inadmissible evidence being adduced before the jury or it could be an error by the judge in directing the jury or during the summing up.

Assuming that you have found either new evidence or a fault in the trial process you are still not home and dry yet!  You still need to show the judges that the outcome of the trial would have been different had the new evidence been available at the trial or if the error had not occurred.

Even those of us who conduct appeals regularly and are good at them can tell stories of cases lost at the last hurdle because while the Court of Appeal accepts there was a serious error by the trial judge they still conclude that the rest of the evidence was sufficient to convict.  It’s a very frustrating thing to have happen.

Would Amanda Knox and Raffaele Sollecito have been cleared on appeal in England and Wales?  It’s difficult to say but what I am sure about is that they would have had a very difficult time clearing their names in an English appeal court.