Thursday, 31 March 2011

Another one bites the dust

At the time of the expenses scandal, I watched a rather odious performance by Jim Devine on the Channel 4 news where he made some rather absurd claims about the nature of his expenses, which to my ears sounded like an admission of guilt to a number of offences.

He has today been gaoled for 16-months by HHJ Saunders at the Old Bailey.  Considering this was a case involving a gross breach of trust and the creation of forged documents (which takes the offence beyond simply making a false claim) I think he should be pretty pleased with the sentence.

Wednesday, 30 March 2011

The Bribery Act is coming soon

If you run a business or conduct business in England and Wales then I hope you are ready because the new Bribery Act will come into force on the 1st July 2011 and it will affect you.

It will create a handful of new offences; but while the offences may be few they will be wide ranging and very powerful carrying sentences of up to 10 years imprisonment.

You may find yourself criminalised for what you currently consider trivial or even normal and good business practice.  One of the main problem areas will be where to draw the line between business entertainment and bribery.  A few weeks ago, a barristers clerk took me out for lunch, drinks and dinner (I think I paid for dinner but it's all a bit hazy by that point).  We ended up in a casino and he paid for my gambling.  Obviously, he was looking to promote his Chambers to me and get me to send work their way.  Now depending on your views, this could be normal entertainment or it could amount to bribery under the new Act.  There's no hard and fast rules so each case will be decided according to the views of those on the jury.

Let us assume that my little adventure did amount to bribery, who is guilty and facing prison?  Well the clerk is, obviously.  But, so am I because I accepted the bribe.  But assuming the clerk is the employee of Chambers then the barristers Chambers (and potentially its members) are guilty of an offence as well even though they may have known nothing about our little trip.  This is because of section 7 of the Bribery Act makes it an offence for a commercial organisation to fail to prevent bribery.

Let's look at another example.  You run a business and you need to buy some supplies (it doesn't matter what exactly).  You look at a couple of suppliers but there's not much to separate them until one happens to mention that he has some spare tickets to a big football match that you and your kid want to go and see.  You thank him kindly for the tickets and place an order.  The other supplier gets wind of this and makes a report.  You could find yourself being guilty of an offence under s. 2 (accepting a bribe).  But, if it was somebody associated with your business and not you who accepted the tickets and placed the order you could still be guilty of failing to prevent the bribe occurring under s. 7... it's a tough Act to avoid getting muddled up with.

As a sign of how seriously lawyers are taking this new law that the vast majority of us have formed policies to deal with this new Act and avoid becoming criminals ourselves!  If lawyers pay attention to something then it must be serious.

While not trying to blatantly plug my services, if anybody does want/need some advice about this then please feel free to contact me!!

No win, no fee

While generally it is true to say that solicitors are incapable of ever being wrong, I do have to question this solicitors take on a case that went against him.

A conditional fee arrangement allows a solicitor to charge more than his usual fee if he wins a case and not to charge at all if he doesn't win; they are better known as "no win, no fee" cases.

The Courts and Legal Services Act 1990 sets out very clearly what is required to make a valid CFA.  Section 58(3)(a) says, "It must be in writing".  I don't provide CFAs (because s. 58 of the CLSA bars their use in criminal cases); however, it took me less than 2 minutes to work out that the arrangement described in that article is invalid and to find the law that states it to be invalid... so I am surprised that a solicitor with 32-years experience would find the judge's ruling to be "absurd".  I can only assume that he has been mis-quoted.

Friday, 18 March 2011

Sentencing assaults

The Sentencing Council has published new guidelines for dealing with assault cases in Magistrates' Courts.  The new guidelines are much more comphrensive than the old ones.  Broadly speaking, offences are split into three levels indicating the seriousness of injuries suffered and the culpability of the offender.  The court must then consider any aggravating or mitigating factors before selecting an appropriate starting point for sentence.  The court then must go through various steps that increase or decrease the sentence before arriving at a decision.

Will this increase sentences?  Er... no.

Let us look at assault with intent to resist arrest.  Under the old guidelines there were three levels of seriousness and the starting points went:
  1. Low level community order;
  2. High level community order; and 
  3. Crown Court (which means that the case is too serious for the magistrates to sentence because the sentence exceeds their maximum 6-month imprisonment power).
The new guidelines for the same offence are:
  1. Band B fine;
  2. Mid level community order; and
  3. 26-weeks in prison.
The position with ABH is similar, although these offences are often heard in the Crown Court so these guidelines don't apply.  For ABH, the middle offence sees the starting point rise by 2-weeks in prison to 26-weeks custody while the least serious form of ABH drops from a high level community order to a medium level community order.

Assault on a police constable in the execution of his duty follows a similar drop; this is a summary only offence that can only be heard in the magistrates court.  The old guidelines gave the following starting points:
  1. Low level community order;
  2. High level community order; and
  3. 18-weeks in prison.
The new guidelines are:
  1. Band B fine;
  2. Medium level community order; and
  3. 12-weeks imprisonment.
It may not be entirely fair to compare these starting points side by side because the old guidelines took a slightly different approach to working out the starting point and the new guidelines are far more comphrensive than the old.

Here's a link to the new guidelines and here are the complete Magistrates' Court Sentencing Guidelines as used in courts every day, which is where I took the old starting points from in this post.

IT

A few years ago the Met police spent a fortune upgrading the computer systems in all its custody suites... I say upgrading but what I really mean is introducing computers since they didn't seem to have any at all before.

I don't know what has happened - and nor it seems do the police engineers - but I understand that all of the custody suite computers have been out of action (certainly at every custody suite anyone at my firm has attended) for the last week.  This is a big problem as most of the stations cannot tell who is due to answer bail to them and when they are due, which really means if you don't bother showing up then the police may not realise!


These computers are all very clever but this wouldn't have happened under the old pen and paper system... then again maybe I'm just getting old; my first interview at the police station was a all day handwritten record of interview job!

Thursday, 17 March 2011

Not enough cash to charge suspects

Before a suspect is interviewed the police will usually disclose the basic facts of a case to the suspect's solicitor, which is one of the best reasons for having a solicitor by the way!

There are rumours flying about that the CPS are refusing to authorise charges of suspects because of budget constraints - I most recently heard this the weekend before last at a party from a Met police officer and again last Friday from a BTP police officer at a Chas and Dave concert (I have high musical tastes!)

Consider this piece of disclosure in a theft case, "LBH have produced CCTV evidence which shows the offence... The defendant is currently on bail for two like offences... [and] has 14 previous convictions for theft offences..."  The disclosure also makes the point that a CCTV operator witnessed the offence as it happened, which is how the police came to be called.

I cannot comment about whether the CPS are deliberately refusing to charge, but in this case the CPS refused to charge and the matter was "no further actioned".

Youth Offending Team

In January I dealt with a 17-year-old girl who had been arrested for something she hadn't done but then proceeded to write her name several times on the cell walls in pencil.  Her mother attended, told her off and offered to make her rub off the pencil marks.  The original reason for her arrest was dropped by the police but she was charged with criminal damage as the Youth Offending Team (YOT) would not authorise a reprimand.

In December 2010, a colleague asked the YOT to review this again with a view to giving a warning or reprimand as it seemed like over-kill to give somebody who had never been in contact with the police let alone the courts a criminal record for such a minor offence.

Unfortunately, the YOT didn't seem to want to do anything.  So, when I went back in January it was adjourned again to give them some more time.  I've just looked at the file.  It was finally resolved at the end of February after five adjournments for the YOT to make a decision!  At the final hearing they still hadn't made up their minds but the client entered a guilty plea and received an absolute discharge - which is the lowest "sentence" a court can impose and means that the case is over and the court recognises that the defendant does not deserve punishment for the offence!

A reprimand could have been issued in December, to all intents and purposes it would have been the same thing as an absolute discharge but would have saved the lawyers fees on both the defence and prosecution sides as well as a lot of court time (six hearings in total) as well as the time of the police and others.

Given that this is how that particular YOT office handle a kid who isn't a real trouble-maker I think it's no surprise that you see the same kids in that court week-in, week-out.

Friday, 11 March 2011

The Truth About Hiring a Criminal Defense Lawyer

The sharp-eyed among you may have noticed the deliberate Americanisation of the word "defence" in the title.  That's because I wanted to share this interesting and amusing piece called The Truth About Hiring a Criminal Defense Lawyer, which was written by an American lawyer called Brian Tannebaum.

I don't agree with every word, but for the most part I think it's spot on.  

I just wish that UK lawyers could charge such huge fees for our work (minimum of $5,000 for a guilty plea drink driving case over there, while today I represented an Ambasador's wife for assault and was paid less than £500 for her guilty plea)... oh well, I can dream.

Women in prison

I stumbled onto a copy of "Working with women prisoners" on the Prison Service website while looking for a copy of the Prison Rules.

One of the most remarkable things that stood out in the document for me is the table of who is looking after the women prisoners' children while they are in prison.

Just 9% are cared for by their fathers; while 8% are in care.  A relatively massive 24% go to grandparents and 17% to a "female relative".  So, almost twice as many children are cared for by a general female relative as opposed to by their dad.

From my own experience, it is far more common for me to deal with a youth who has little or no contact with his dad than it is to deal with one who has regular contact with daddy.  I've also dealt with a few who have no contact with their mums and they are often the most screwed up kids of the lot.

I was never a fan of the old Tory governments witch hunts against single mothers, but I do think that a lack of family cohesion has a lot to do with crime. 

Thursday, 3 March 2011

Complaining is easy

For reasons that do not matter I have had to make a crime report to Northamptonshire Police.  Now, my office is nowhere Northants so I thought I'd visit the website for help.  I know on other police sites reporting crime is easy.

With Northants, I can easily make a complaint about a police officer - that's on the front page.  I can easily access their pages on various social networks - there's a huge ad for those on the front page.  I can also find out all sorts of interesting things like what the police helicopter has been up to, where the mobile speed cameras are going to be through the month (which seems to defeat the point of them) and I can find out what the police do; I had assumed I knew, but apparently I need to watch the "Force video", read the "Mission Statement" and research the "Command Structure" to fully understand what the police do.

Nowhere on the front page can I see how I might report a sodding crime!!!  I checked "Contacts" still nothing there about how I can make a written crime report.  There is a number for enquiries but that's about it.

I have eventually found that if I click on a link marked "Forms" then I magically find a way to report crime.

It's almost as if they don't want to mention the word crime.  Crime only merits a single mention in the "What we do" section and I've counted a total of 8 mentions on the whole website (three of those being references to Acts of Parliament where you can have your say about them and other Government schemes).

In the end the crime reporting I did find was quite poor and we'll see if I ever hear back about it.

Maybe I'm old fashioned or out of touch or both, but all I really want from the police is for them to do things that prevent crime and arrest those who commit crime.  I'm not interested in finding out what their helicopter is up to.  I don't really want to go to the Facetube site and am concerned that they are paying people to sit around managing all this rubbish.

Wednesday, 2 March 2011

Pay restraint

I've just come across this story about plans to cut police pay.

It seems to me that the Government needs to think about what is important to the people and therefore what is important to it.

If I am in dire fiscal straits then I must consider whether I pay off my bills in any particular order.  I could pay all my credit cards and over draft off first while ignoring my mortgage.  The end result might be that I end up with no debt quickly because my personal debts are covered and the bank takes my house away to pay off the mortgage I owe them.  But, the problem is that I am now homeless.  A better solution seems to be to decide what is important to me.  Maybe it is better that I pay my debts slowly but have somewhere to live at the end of it.

This is the same problem as the Government faces.  Does it slash all public spending to the bone, pay all the debts but risk leaving the country in an appalling state at the end of it?  Or does it have a realistic look at what is important to the country, ensure that those important services are looked after and then pay off the debts over a longer period of time?

If the Government wants to cut police pay (either in real terms or literally) then they may find it is harder to recruit.  London and BTP officers are quite well paid, but outside of London and the pay is pretty piss poor from what I am told.

For what it's worth, I happen to think that the police, like the fire brigade and some people in the NHS (sorry but I cannot accept that all the managers and non-medical staff are necessary) are important to this country and that the Government should not destroy those services now to save a few pennies.

This is what they call a penny wise, pound foolish.