Thursday, 27 January 2011

Bugger justice

Following the Second World War the Government of the day thought that it would be a jolly good thing if people had access to the legal system so that they could protect themselves from wrong doing and make life for everybody better.  For example, in the 1960s if a husband and wife split up, the wife had few if any rights to the family home etc.  That changed when a wife who had been the victim of domestic violence and who had been told by the High Court that she had no right to stay in the family home as it was in her husband's name, was able to bring a case before Lord Denning in the Court of Appeal where Denning told the legal world, and every judge that had come before him, that they had misunderstood the law and that the wife had every right to the house and that it was her violent abusive husband who would not be allowed to set foot in there again.  That one decision advanced the rights of women more than most things I can think of.

One important aspect of the legal aid lawyers work is the protection of children through the family courts.  Now I'm not suggesting that there are lawyers out there jumping into violent homes to physically protect children; what I mean is that the lawyers in those cases work hard to reach agreements and settle cases in court so that children maintain contact with both parents and live as happy and normal a life as possible.  We have all seen reports of what happens when things go wrong, children abducted and taken abroad, one parent (usually the father) goes mad and hurts himself or his family, etc.  Ignoring the extreme cases, when things go wrong they can have a devastating affect on the child who loses contact with mum or dad; or who grows up knowing only spiteful conflict and then goes on to repeat the mistakes of his parents in future.

The repercussions of things going wrong in those cases can be immense.  So, it was with a great deal of surprise that I read in this week's Law Society Gazette that the Government is seeking to withdraw legal aid in private law family cases, except where domestic violence is alleged.  If you read the short report you'll see that lawyer's who work in these cases on both sides say that this increases the risk of child abductions and false allegations of violence.

You'll also read the most chilling words I've ever seen in the Gazette, "The government's own impact assessment of the changes acknowledged that the reforms may lead to 'less fair' outcomes and 'increased criminality' where family disputes escalate, or people use unlawful means to resolve problems."  Okay, so it's not exactly a Steven King novel, but think about the meaning behind those bland words. 

"Less fair" means not just or put it another way the system will produce injustice
"Increased criminality" sounds a lot like code for people making false allegations.  At any rate it is an acceptance that people who would never be classed as criminals will become criminals because of the Government's actions.
"unlawful means" can only mean that the Government accepts that people will commit crimes as a result of this proposal.  These aren't petty crimes either, these are full on major incident crimes that if you want to worry about cost savings will lead to far more expense each year than leaving the system alone.  Crimes such as child abduction requiring massive resources here and abroad.

Let's just re-write that paragraph into plain English, "The government's own impact assessment of the changes acknowledged that the reforms may lead to injustice for children and families and may increase both false allegations of domestic violence and actual violence and child abduction as a result of family disputes escalating."

The Government, the people charged with making ours and our children's lives better and protecting ours and our children's safety and security are taking actions, which even the Government acknowledge will push up crime against children and will lead to children not receiving justice.

This is the true cost of legal aid cuts.

Just for the record, I do not practice family law and will not be effected by any cuts to family legal aid.

Wednesday, 26 January 2011

Control Order Lite

The BBC have this story on their website about the Government's new Terrorism Prevention and Investigation Measures (aka T-PIMS, which just sounds like a mobile phone company to me).

I don't have any immediate comment about these orders aside from the observation that there doesn't seem to be very much difference between these and the Control Orders that they replace.  It does strike me that if these people are seriously dangerous and the authorities know it then there must be a better system for dealing with them, such as bringing them to trial.  Maybe you think that is naive of me and that the Security Services must protect the sources of their information.  You may be right; I don't know.  I do know that the police manage to operate a large and highly secretive (unless you go to my basement where you'll find the informant handling manual!) intelligence system that utilises data from a wide range of sources from super grasses to rumors heard on the street.  If you ever find yourself involved in a large scale gang fight that results in a murder you will quickly see the scope of this intelligence network as officers effortlessly produce information about who knows who in a given area, where people were seen together, what nicknames (or streetnames if you prefer) people are known by.  If you hear on the news of a big incident and then that 25 people have been arrested shortly after then you are probably seeing the result of this huge intelligence database.

My point is that the police manage to handle all this information without revealling their sources, in fact I once saw a DI told by a judge that he had to answer a question from Counsel about the informant handling system, the DI looked at the judge and said, "No".  So, if the police can do it, why can't the Secret Intelligence Serivce & Co.?

Another point occurs to me: if the people on control orders really are as dangerous as the Government says then why aren't the Government keen to find someway to lock them up in a prison that won't be criticised as breaching the Human Rights Act, e.g. by holding trials?  While I never trust any politician, I do believe that they must believe these people are very dangerous otherwise I'd have thought the new lot would have accused the last lot of being scaremongering fools.

For me at least, this debate really is a catch-22.  I don't have enough information to come to a proper conclusion so I'm forced to rely upon the advice and decisions of those who do have the information; however, I don't trust the people making the decisions as they refuse to reveal any detail about why they have reached their decisions.

As one court closes another one opens

I attended Stratford Magistrates Court today.  I like it there.  I can park my bike easily, there is a reasonably spacious advocates room to change in and the staff are friendly, helpful and efficient.

On arrival I was told I would be in court 11 before a lay bench.  This surprised me as after many years of attending Stratford I have only ever found 10 courts.  I went to court 10.  Left was court 9.  Right is the stairs.  Opposite is the probation office.  Nowhere is there a court 11.

I asked for some help and was directed to the 'canteen' (an amusing title in itself for a large room with half a dozen tables but only two chairs and a vending machine) where I found the court in full swing.  Three magistrates, a clerk, defendants, lawyers... all sitting in the canteen.  Much to my disappointment, the vending machines had gone so no coffee or chocolate for me.

Tuesday, 11 January 2011

Fire extinguisher throwing student gaoled

I have just read this story on the BBC News website.

That he went to prison is no great shock and he should just be grateful that he did not hurt or kill anybody else he'd have been facing a far longer sentence.

It frightens me how people can lose control and do something stupid in a moment of madness.  I once represented a student from the London School of Economics who had come from a good school and had excellent prospects until he caved in a man's head with a brick - the man survived but only just!

I don't know if I can say I'll never lose it and do something stupid, but I do my best to stay out of trouble.

Cash forfeiture and the meaning of draconian


I was due to represent a client in a cash forfeiture hearing this week, although it has been called off at the last minute.  But, I thought I’d take the opportunity to say a few words about these proceedings.

The point of the various financial seizure/forfeiture/confiscation orders is for the authorities to deprive criminals of cash found in their possession.  There are a few ways this can be done.  Confiscation proceedings follow a conviction for certain offences, such as drug dealing, money laundering, etc.  Put very simply, in confiscation proceedings the prosecution must show that a) the convicted criminal has benefited from crime to a value of X; and b) that he has realisable assets (in other words has cash or can sell goods) to the value of Y.  The court will then make an order that the defendant owes X but that he must pay Y wherever X is greater than or equal to Y.  Obviously if he can pay the total benefit figure (X) then he must pay that.  Failure to make payment can result in more time in prison.  Confiscation is not concerned so much with the source of the funds being confiscated as it is with the benefit that the criminal has derived from his crime.

Cash forfeiture is different and less widely known among the general public.  It focuses on cash, literally notes and coins, found in someone’s possession.  Possession, in this context means under his control, so it doesn’t have to be on his person but could be in a safe at home or (as in my case) locked away safe and sound in a security box at the bank.

The cash can be restrained initially by the police and then by order of a court.  Subsequently it can be forfeited if the prosecutor can show that the money is the proceeds of a crime or is to be used in the commission of a crime.  So, if a drug dealer has earned it or was planning to buy more drugs to deal then it can be forfeited.

I, and many other lawyers, say that cash forfeiture is draconian.

If the police arrest Mr Smith and accuse him of drug dealing (for example, although cash forfeiture is by no means restricted to drug offences) then they must produce evidence sufficient to make a jury certain (we used to say “sure beyond reasonable doubt”) that Mr Smith is guilty of the offence.  It is a high burden for the prosecution to achieve and it is right that it should be so because a conviction will likely result in prison, damage to a person’s reputation and future legitimate employment prospects, not to mention that the convicted person is then easy prey for a confiscation hearing.

Cash forfeiture requires no conviction and, in fact, does not even require that there be criminal charges contemplated let alone proved.  An application could even be made where the defendant has been acquitted, although I imagine the magistrates’ would consider that highly probative evidence.  

Cash forfeiture is a civil matter, which means that instead of deciding a case “beyond reasonable doubt” the magistrates (for these are always heard in the mags court) must decide whether it is more likely than not that Mr Smith either obtained the money through crime or intended to use it for a crime.  In effect, they must decide on whether he is a criminal.  This will have the same effect on his reputation, although he may not have to reveal it to an employer in future and he stands to lose his money.

Simply the massive reduction in the standard of proof may be enough to call this draconian, but then we look at how Mr Smith can defend himself against these actions.  He can either represent himself against highly trained and professional investigators and highly experienced lawyers in a very technical area of law or he can instruct a solicitor.  Fine, you may be thinking, he goes along to see The Defence Brief, gets some lovely legal aid and everything will be okay.  No.  Legal aid is not available for these proceedings so he needs to pay privately for representation.  Hang on a minute though; the police have already seized all his money.  No problem, we’ll ask the court to release some fund to pay for the lawyers.  Nice try, but no the court has no power to release funds to fight the application.

Where then does this leave Mr Smith (who may actually be innocent since he hasn’t been convicted of anything)?  Well it may leave him in a lot of trouble.

In my case, there is no suggestion of drugs but there is a somewhat unique explanation for the source of the money that is backed up by another party (and witnesses) claiming the cash belongs to them.  It’s so unique that I’m not even going to hint at it here.  The other party is represented by a solicitor who normally haunts the High Court and who has absolutely no experience of this area of work.  Personally, I think they may yet crash and burn because of their choice of representation, but that’s another matter.  I have tried to explain to that solicitor that the purpose of cash forfeiture is to get the loot, not to afford the owner of the money a particularly fair hearing.  I don’t think he believed me at the time, but he seems to be working it out the longer this drags on.

You can make up your own mind whether you think it’s draconian or not.  For my part, I wouldn’t object if the forfeiture requires proper proof to the criminal standard, but that is exactly why cash forfeiture is used: because the prosecution are struggling to prove to a criminal court beyond reasonable doubt that the defendant has done anything wrong!

Facebook

I recently read a lengthy interview with Mark Zuckerberg, the founder and CEO of Facebook, in which he explained his views on privacy.  Paraphrasing somewhat he suggested that people should show only one face to the world, so how you behave when with friends should be how you behave at work - you might say that this would mean there should be no such thing as a private part of your life according to his philosophy.  It strikes me as quite a naive view of the world, but maybe that's just me.

Imagine my surprise when  I visited his Facebook page only to find that he does not share all of his information!  No pictures are available aside from the little profile pic.  No information about him aside from his taste in films and books and this little quote: "About Mark:  I'm trying to make the world a more open place."

Presumably, he means more open for other people's information, but not his own.

Tuesday, 4 January 2011

Happy New Non-Story

Happy New Year to everyone.  I thought I'd start of the year with a nice non-news-story brought to us by our friends in the Scottish National Party.  A chap called Stewart Maxwell of the SNP quite rightly wants to stop sales of alcohol to those who are under-age and so he has written to supermarkets asking them to stop selling booze through self-service tills... well he says that's the reason he's doing it, although personally I think it's just a cheap way to get some personal media attention. 

His big point is that, "[i]t would make much more sense for alcohol as a licensed product to only be for sale through a full service till where a sales assistant can properly assess a customer's age."  Whenever I've tried to buy alcohol (or any age-restricted item) through a self-service till the machine makes an infuriating beeping noise and will not allow you to continue with the transcation until a member of staff has confirmed my age.  The self-service tills won't even let me get away with buying two boxes of ibuprofen at a time let alone anything more serious.

I agree that politicians should take an interest in whether kids are drinking themselves silly, but this story just reminds me of Jim Hacker's route to become Prime Minister when he and Sir Humphrey took a non-story about the "euro-sausage", put a bad spin on it then solved the "problem" with some tough action.

Incidentally, anybody who thinks that I've just done exactly the same thing by writing about this non-sense is quite right.