Saturday, 30 April 2011

Taking the piss

I saw a man working at a riverside juice bar yesterday wearing a high visibility jacket with the words, "Community Payback" on its back.

I can only assume that either he or somebody else sentenced to do unpaid work stole the jacket during the sentence... now that is taking the piss!

Thursday, 28 April 2011

Speed kills... just not that often

What I am about to say may well be controversial to some; however I think it is well worth saying: speed is no where near the main cause of accidents in the UK.

It is worth taking the time to think about what we mean by the claim that "Speed Kills".  Do we mean that going very fast will kill you?  If so then that is demonstrably rubbish.  The fastest I have ever driven a car is 180MPH (at Silverstone race track before anybody suggests I would ever exceed a speed limit).  I have travelled at close to 600MPH and despite both I am still alive.  Others have gone much faster and lived to tell the tale.  So, speed itself is not a killer.  How then does speed kill?  Well, the culprit is not speed but inappropriate speed.  I accept that the warning "Inappropriate Speed Kills" may not have the same ring to it.

The Institute of Advances Motorists has just released research on the various contributory causes of accidents and I have to say that the main causes are far more frightening that going too fast.

The top three causes of accidents are given in the executive summary as being:

  1. Driver error, which appears to come down to not looking properly or thinking about what is happening around them accounted for 68% of all accidents;
  2. Injudicious actions accounted for 26% of crashes; and
  3. Behaviour and experience factors accounting for 25% of accidents.
 This doesn't add up to 100% because there can be multiple causes to any given accident.

Looking at the summary charts we see that for car drivers simply not looking where they were going was the largest single accident cause at 18.6%  It is closely followed by failing to judge others path or speed at 10.4%  Surprisingly, travelling too fast for the conditions accounted for just 5.6% of accidents.

I will quote direct from the report:
"Many of the issues which receive the most media coverage are not actually among the most common contributory factors. Speeding, drink driving, mobile phone use, tailgating, road rage and bad weather are all important but are not as frequently reported as driver errors;
• ‘Exceeding the speed limit’ (13.9% of fatal, 7.2% of serious and less for slight)
• ‘impaired by alcohol’ (10% of fatal and 7% of serious accidents, less slight accidents)
• ‘aggressive driving’ (8% of fatal accidents, less serious and slight accidents)
• ‘slippery road - due to weather’ (11% of slight and 8% of serious accidents but less
frequently reported in fatal accidents)
• ‘sudden braking’ and ‘following too close’ (8% of slight accidents each, but less
frequently reported in fatal and serious accidents)
• ‘Driver using mobile phone’ (0.8% of fatal crashes, but only 0.2% of all injury
crashes)
• Vehicle defects are recorded in very few cases (2%)."

The message seems to be that speeding will make an accident much worse and that you are more likely to kill or be killed if you drive too fast, particularly in places that are unsuitable for high speed.  However, the one thing everybody can do to reduce accidents is to LOOK WHERE YOU ARE GOING!

As a motorcyclist the report seems to agree with my personal observations.  This morning two people cut across me as I was riding along minding my own business and caused me to take evasive action; neither I nor they were exceeding the speed limit or travelling too fast for the conditions.  Two near misses each way to work and back is by no means exceptional, more like its average because people simply don't bother to look properly or at all before they manoeuvre.  If we really want to cut down on road deaths and accidents I personally think that the only way is to have regular re-assessments of driving and prevent those who are not up to it from getting behind the wheel.  And I say that knowing just how much I would HATE to have to take another driving test.

Incidentally, I did see an accident this morning.  A man on a moped was too busy arguing with a van driver to notice the van in front of him stop and the moped drove straight into it.  Wouldn't have happened had the rider pointed his face in the direction of travel.

Wednesday, 27 April 2011

Emergency

Every now and then the police release their most extraordinary 999 calls for us to laugh at and, presumably, learn when not to dial 999.

We solicitors also have emergency numbers for clients who have been arrested and need urgent advice, usually outside of normal business hours.  At least that's what I thought the emergency phone was for.  My clients' families usually think it's for something different.

I've had the emergency phone for the first time in a little while this week and so far have had a number of people calling in the middle of the night believing that when this is just another line to the office and that all of the solicitors sit together in the office in the dark during the night... at least I assume that's what they think when they phone late at night asking to speak to X, Y or Z and then seeming surprised that the person they want is not with me in bed.  Last night, I had one genuine emergency from a man arrested for an assault he said he did not commit and two calls from people wanting to speak to other solicitors in the middle of the night.

One old favourite was a few years ago from woman who called at 3am to enquire what time she was due in court the following morning... assuming either that I live in the office or have memorised the diary.  The most interesting thing about these calls is that the people who make them always assume that you know who they are without being told and some get quite angry when you ask their name.

About eight-years ago a lady called me over the weekend to ask whether I could get her son out of prison as his grandad wasn't feeling well.  I actually tried and actually managed to speak with the governor but she politely refused the request.

One woman a few years back called me demanding to know which prison her son was in.  "Do we represent him?"  I asked.  "No, he has his own solicitor" she replied - I think she said that the other solicitor wouldn't speak to her.  She was livid when I told her that not only did I not know where her son was but I had no way of finding out at 11pm.  She screamed at me to find somebody more industrious to help her and was genuinely surprised when I informed her that since she was screaming at me I wasn't going to help her at all.

I did once get a call from the dad of some girls who had been arrested for pick pocketing (I say dad although he was more like the Fagin character from Oliver Twist), all he could tell me was that they had been arrested and he thought they were in the south-east of England... but not London!!  We actually managed to find them after a few hours and represented them!

Tuesday, 26 April 2011

Technology is not the answer

I admit that typing the above title seems ironic given that I am sitting in a coffee shop waiting for my motorbike to be repaired while typing using a wireless bluetooth keyboard into my iPad and am connected to pretty much all of the information known to our species thanks to WiFi technology that I barely dreamed possible as a child. So, maybe I should be more specific as to what exactly it is that technology is not the answer to.

Techonology is not the answer to all/many of societies problems; however, I am going to suggest that technology is a wonderful way of making it look like a) you care about something; and b) you are doing something about the thing that you care about.

Anyway, the point - yes there is one - is that the Government is now talking about requiring all dog owners to have their doggies microchipped to reduce the number of aggressive dogs on the streets and the number of dog attacks.

This is a classic example of politicians logic (for those who didn't watch "Yes Minister" and "Yes Prime Minister", politicians logic goes something like, "Cats have four legs; my dog has four legs therefore my dog is a cat". Or, more useful when addressing a problem, "This is a problem and something needs to be done; this is something we must do it").

Requiring the mircrochipping of all puppies shows that a) the Government cares about dog attacks; and b) they are doing something to reduce them. But, can a simple microchip do this? I assume the thinking goes along the lines that if people are required by law to spend money on taking their dog to the vet then a number of things will happen: 1) they will get advice from the vet; 2) the expense will put bad dog owners/breeders off of getting/breeding a dog; and 3) people will realise that having a dog is a responsiblity. Unfortunately, this assumes that 1) people will listen to the vet's advice; 2) bad dog owners/breeders will bother having their dogs chipped; and 3) people will suddenly become responsible for having spent around £35.

Yesterday, I went into my local Tesco Metro where a man was waiting by the entrance shouting at his friends who were inside the shop. One of the things he shouted was that he was forbidden to enter the store because the security guard knows that the man in question likes to "rob" from Tesco; he seemed proud of the fact. He had a dog. He may well be a responsible dog owner. But, let's assume he isn't. Does anybody really and truly believe that for somebody who is proud to announce to a store full of people that he is a known thief a charge of £35 and five-minutes of advice from a vet would suddenly reform him? Would having a microchip suddenly turn him away from the irresponsible and into a model member of society? If he ignores the law on theft, would he be any more likely to follow the law on microchipping? I suspect not.

How would this law be enforced? Presumably either with the recruitment of new council dog inspectors or giving the police microchip readers and opening them up to more queries about whether they have no better things to be doing. What if the dog owner refuse to allow the chip to be read? Will the police have the power to physically force the owner to comply? I think that could just cause more problems than it solves. Even if anybody is ever prosecuted, I bet that the maximum sentence would be little more than a Level 1 or 2 fine.

So, what is the result of compulsory dog microchipping? To my mind it seems to be more expense both for the individual and the public and no observable improvement in the behaviour of dog owners.

The last Government had a scheme just as silly but far more expensive, which was to track all motor vehicles at all times and then charge the owner per mile travelled. Again that was an example of a Government wanting a) to show they cared about a problem (environmental change); and b) that they were doing something about it. Nobody seemed to want to point out the obvious that we already pay per mile we drive and that we already pay more when we sit in traffic than when moving and that we pay more the larger our vehicles engine... how's this? Because we pay tax on petrol and we use more the further we drive, more when we sit in traffic and the bigger your engine the more you will use up!

Wednesday, 20 April 2011

Welcome Learned Friends

I would just like to take a moment to welcome My Learned Friends at the Bar of England and Wales to the officious world of the Legal Services Commission - a true bureaucracy that has no purpose other than to create more red tape and expense.

Quite recently, the LSC took over the handling of the Advocates Graduated Fee Scheme (basically how the Bar gets paid for Crown Court work).  Previously, such things were handled by a single or sometimes small team clerks at the Court where the work was conducted and payment would be authorised and made within a short time-scale of a few weeks in most cases.  From my own experience, the court staff were usually efficient, friendly and made few mistakes - if they adjusted a bill they were right 9 times out of 10.  My own experience of the LSC (who have been handling all types of solicitors claims for years) is that they are almost never efficient, staff may or may not be friendly and they make a huge number of mistakes - for example, I recently had a bill reduced because the page count was reduced "as per the evidence YOU sent us", so said the scawled note on my bill.  I returned it pointing out that they had failed to include two whole schedules of evidence when they did they sums.  That bill was originally submitted in January and as we approach May I am still waiting to be paid!  This is normal.

I am now hearing lots of complaints from the Bar that their bills are not being paid and that they feel like the LSC are calling them liars... all I can say is welcome to my world where solicitors have put up with this attitude from the LSC for years.

Members of the Bar, just wait until the LSC starts telling you how to do your job despite not having any legal qualifications or ever having stepped foot inside a court room, because they love to say that whatever you do for your clients was unnecessary (like reading the evideince against them, taking their instructions, etc).

Tuesday, 19 April 2011

Expert witnesses

There are whisperings of a crackdown on expert witnesses in the form of a toughening of the rules governing the evidence they give to the court.



Currently expert evidence is governed by Rule 33 of the Criminal Procedure Rules as well as by the guidance issued by individual governing bodies, for example this is the General Medical Council's advice.  Other less well regulated areas have different, less or no real guidance for 'experts' to follow.  Even where guidance exists that doesn't mean it will be followed well, properly or even at all!

A few years ago, I was counsel in a big cultivation of cannabis case where one of the central issues revolved around an accounting ledger written partly in English and partly in Vietnamese.  There was a dispute over whether a particular word translated into "grass" or "aunty".  The Crown contended the word was "grass" and referred to cannabis sales.  The Defence line was the word meant "aunty" and related to a loan repayment by the defendant to his aunt.  The prosecution produced an "expert" in the form of a Vietnamese translator who was very bad and whom we were able to tear apart.  So, the next day they found another translator who did manage to support them.  So, we responded with our own expert report that concurred with us that the word was "aunty". Thinking about it, I don't think our expert was all that honest as a) she knew the co-defendant and had discussed the case prior to giving us the report but 'forgot' to mention that fact; and b) she fled the country when told she had to come to court to give evidence!  Proper quality expert... just the sort our justice system needs.

Now, before a lawyer can stand up in Court, he or she must complete several years of training plus on the job training and post-qualification training as well as completing yearly update courses.  A typical expert does not need to show any of this training and certainly in the case of translators and other such un-regulated experts they don't always need to have any training at all because the Courts quite regularly don't bother to make any checks whatsoever.  That is how people like Gene Morrison and Godwin Onubogu was able to give evidence in court.

But, bogus experts aren't the only problem that the courts face.  Other respectable, educated and fully qualified experts frequently get a bee in their bonnet about something or worse become so entrenched in their thinking that they forget to question the evidence and reach conclusions based on the evidence rather than arriving at a conclusion and then looking back for the evidence.

In one case my firm covered, the financial expert continually said he needed more and more disclosure from the Crown.  When his report finally arrived, it was clear that he hadn't needed 80% of it and was simply trying to inflate his own bill.

A friend of mine holds a doctorate that has something to do with the analysis of pollen (I don't pretend to fully understand it at all) and I have regularly advised him to take up expert witness jobs as they pay rather well.  He refuses because he says that the handful of other experts currently in the UK spend more of their time trying to discredit each other than conducting any useful science and he doesn't want to be involved in a public slanging match in the courts and in his industry publications.  He describes the two main experts as "useless" but so loud that people listen to them.

When I recently required the services of a forensic paediatric pathologist I discovered a small problem.  There is only one such person in the UK, Professor Risden, and he gives expert reports exclusively to the prosecution - he will not accept an instruction from the defence was the result of my enquiries... very independent you might think.  Finding a forensic pathologist is relatively easy until you mention that a child is involved, at which point it becomes very hard to find anybody willing to act because of the mud slinging that goes on between the experts who work solely for the prosecution and the others.

As an example of the sort of thing that goes on I will quote from a statement given by Heather Kirkwood to an English court.  Mrs Kirkwood is a US attorney who is licenced to practice in Washington and Texas.  She has approximately 20-years practice experience and she swore a statement that at the Eleventh International Conference on shaken baby syndrome she witnessed Detective Inspector Welsh from the Metropolitan Police Service give a talk entitled "A National Co-Ordinated Approach to Cases of Non-Accidental Head Injury in the UK".  She describes the co-ordinated approach thus:

"Shortly into the talk, I realized that the "national coordinated approach" referenced in the titled of the talk was essentially a description of the joint efforts of New Scotland Yard, prosecution counsel, and prosecution medical experts to prevent Dr Squier [sic] and Dr Cohen [two medical doctors who questioned prosecution evidence and were the subject of anonymous complaints to the GMC] from testifying for the defense on their findings in specific cases as well as on their published and peer-reviewed research."

The matter of what happened at this conference and the situation with Dr's Squires and Cohen are whole topics in themselves and I mention them only to give an illustration of the world of expert evidence, which is often thought of as a lofty idealistic arena where scientific evidence is examined and conclusions drawn based solely on facts not egos or fixed notions of what is scientifically "right".

There does need to be action taken to increase the quality of evidence given by experts.  One big step would be for the courts to become involved far earlier and to have a major hand in the appointment of witnesses.  Civil courts make a lot of use of single joint experts (where one independent expert is agreed upon and instructed jointly) and although provision exists for this in the criminal courts the reality is that where expert evidence is called by one side to show X another expert will be called by the other side to show Y.  Experts are supposed to be independent of the party who instructs them, but it is remarkable how many times a prosecution expert agrees with the prosecution case and a defence expert agrees with the defence case.  One solution might be for the prosecution and defence to both submit a summary of their case to the court and for the judge to draft questions for the expert to address to avoid influence from either side.

A final and very simple step that could prevent bogus experts and ensure that all experts are up-to-date could be for all witnesses to show evidence of their qualifications to the court each time they come to give evidence.

Bullet proof vests for sale

On my ride to work I often pass Dallas Clothing, a slightly odd clothing store in Whitechapel.  I say it's odd because the entrance is a small doorway that leads to what I assume to be a shop in a windowless area above a beauty saloon called Afreen.

This morning, I noticed a sign on the door advertising bullet proof vests and gloves.  Call me an old cynic, but I can only think of one reason that you'd want to be buying bullet proof vests and that is because you are somebody closely associated with gun crime... in which case, I wonder whether simply leaving a store that sells such equipment would provide reasonable grounds for a stop and search under s. 1 PACE?

Monday, 18 April 2011

Appeal

Seems that the DDP has decided to move onto my territory and has started advising people to appeal their convictions.

I don't really have much to say about this, except to wonder why the protesters have not already received such advice from their own solicitors?

Friday, 15 April 2011

No wonder pubs are closing down

I regularly hear how pubs are closing all the time and that is something that genuinely worries me as I happen to quite like pubs!  But, given the comments of Daniel Griffiths when discussing how two gay men were thrown out of a Soho pub for kissing I'm not surprised that pubs are being shut down if his establishment is as authoritarian as he makes it sound.

Maybe the landlord of the John Snow and Samuel Smith brewery (owners of some of the worst pubs in the UK and produces of some truly horrific beers) don't like gays in their establishments but then maybe they should have thought twice before opening up shop in Soho... for those who haven't visited Soho it's not overtly gay like Brighton or Canal Street in Manchester but it is a place where you will find just about anything and everything happening and like as not you'll see as many openly gay/lesbian couples as you will heterosexual couples.

All I can suggest to James Bull and Jonathan Williams is to try anywhere in Covent Garden and particularly the Retro Bar, which is down a tiny alleyway off the Strand.

Why Scouting for girls is like criminal law

I'm watching BBC Breakfast and they have a piece about the fact that more girls than boys have joined the Scouts this year for the first time ever.

It's good news for the Scouts that they remain so popular, but it got me thinking about the funny way that sexual equality works.

When I was a boy the Scouts were exclusively for boys - the handbook may even have still been called "Scouting for Boys".  While I was still a member the UK leadership changed the rules to allow girls to join, but left the choice of whether to admit girls to individual troops.  We had just one enquiry from a girl and the leader asked us to vote whether the troop should admit girls.  The vote was a unanimous no and as I remember the main reason was because we all just wanted somewhere we could all go that was just for us boys (I was about 10 at the time so maybe the reasoning wasn't quite so clearly defined as I recall).

Something that has always intrigued me is why there was a call for the Boy Scouts to admit girls but no similar call for the Girl Guides to admit boys.  I'm pretty sure that many people would say "well, boys wouldn't want to join the Guides", but that was exactly what we all thought about girls before they were allowed to join the Scouts!

This kind of positive discrimination can be seen in other aspects of our society.  For example, when I studied A-Level law our teacher asked the class to vote on sentences.  By a majority of about 20 to 3, the class voted to give a lower sentence to a woman than a man where both were convicted of the same crime.  Even now, my advice to female clients is that although in theory they should be sentenced on the same principals as their male counterparts, in reality the risk of their going to prison is far lower.

This isn't limited just to sentencing, it can also be seen in the way the prosecution present their cases to juries.  A few years ago I defended in a conspiracy to cultivate cannabis case where two husband and wife teams were said to have been running cannabis farms on an industrial scale.  It seemed to me that they were all in it together, but the prosecution went after the husbands so much that the wives defence barely had to say a word throughout the case.

In another example, three people were accused of money launder.  The woman was found with all the cash (approx. one million pounds cash) and all the banking records in her home.  She was also observed making deposits into bank accounts as part of the laundering activity.  She was caught out lying several times during interview about her activities, land ownership etc.  Her boyfriend and his nephew were just seen making deposits.  The prosecution placed her last on the indictment and went for the two men with gusto.  Both men were convicted but our client, the woman and brains behind the operation, was acquitted.

Is any of this right or wrong?  Is it just in my imagination?

Tuesday, 5 April 2011

Legal aid boosts the number of lawyers

According to the Daily Mail, the UK now has more lawyers that police officers because of legal aid.

One of my favourite hobbies is to flick through my mum's copy of the paper and show her that everything is definitely the fault of the Jews and anyone with a slightly dusky skin tone... how silly am I going to look next time I do that and it turns out that all the ills of the world are now my fault?

No doubt the Mail's stories are always rigorously researched, but in this case something is quite wrong.  For a start apart from the headline and an incorrect claim that the Law Society opposes cuts to legal aid, when in fact the LS have suggested cuts of £384M compared to the Government's cuts of £350M (they only oppose what is being cut not the cuts themselves), the story doesn't appear to be about legal aid at all, not that the Mail makes that clear.

The Mail points out that there are 165,000 lawyers compared to 142,000 police officers... is that a complaint about legal aid or about the Government not providing sufficient officers?

What the Mail forgets to mention is that just 6% of the 165,000 lawyers actually practice legal aid (that's 9,900 by the way) and that the number of legal aid firms has fallen by more than 60% in the past 10 odd years (down from 5,000 to less than 3,000).  Those simple numbers seem to give lie to the claim made in the headline.

The Mail appears upset that local authorities employ "around a dozen [lawyers] per council".  Local authority lawyers may do many things from advising the council about contracts to prosecuting benefit fraud.  One thing they never do is legal aid work.  I also note that they don't mention that every police force has it's own legal department that employs more lawyers than the average legal aid firm.  Nor do they mention the largest law firm on the face of this planet, which is called the Crown Prosecution Service!  They also forget to mention that the Daily Mail itself employs a whole legal department.

On the subject of trainee solicitors, the Mail points out that the average trainee earns £26,327 per year.  Look at the article and you'll notice that they are no longer talking about legal aid lawyers; they are talking about ALL solicitors (but not barristers).  In fact, the Law Society sets the minimum salary for trainees at about £14,000 per year and if you can find a trainee in a legal aid firm they'll be on a salary much closer to that than to £26K.  If you look at the Gazette you may still find a few ads for newly qualified solicitors in legal aid firms... if you do then outside London the salary offered will probably be around the £19,000 mark and in London between £22-24K.

Law is just like anything else, Norman Foster and my mate Barry are both architects, but Barry doesn't earn anything like Norman Foster.

Finally, I wonder how much the Daily Mail really understands about lawyers (I've dealt with their legal department before and their own lawyers are very good... maybe they should interview them before writing these stories).  I note that they describe barristers as elite lawyers.  I qualified as a barrister and I can assure you that there is nothing elite about the Bar in general; they are simply a different type of lawyer just as a legal executive or notary public is a different type of lawyer.  In fairness, that is a misconception held be many members of the public - a client recently insisted that we instruct a barrister to represent her at a sentencing hearing.  The barrister cost £1,000 (more than my firm was paid) for a hearing that lasted about 20 minutes.  The barrister was an inappropriate choice who called my office to ask us about the law!  So much for elite.

Anyway, the point of this post is really this: love lawyers or hate them, I don't really care but make your decision based on the facts not the rubbish written in the press by journalists who really don't understand their subject area.

Job searching

After watching the news where they discussed the plight of the unemployed over-50's who are trying to get back into work and reading something similar in the Law Society Gazette about prospective trainees who have trouble finding work I thought I'd mention my recent search for staff.

There are a two jobs on offer, first for duty solicitors.  There's no upper limit to how many we'll employ at the moment.  We have adverts in all the local court robing/advocate rooms and are putting an ad in the Gazette.  So far we have had zero applications. 

The second job is for a 3-day a week receptionist/office junior.  We ran a single small ad in the Evening Standard for one day only.  At the last count we had received approximately 1,200 applications.  The vast majority of the applicants have been wildly inappropriate (e.g. people massively over-qualified, those living in inappropriate places by which I mean it would cost them more to get to work than we would pay them such as Brighton and Pakistan, we've also had quite a few applying to be waiters, cleaners, chefs etc. but not receptionists).  Of the remainder, I am told that a large number have said that they are not willing to work in Hackney, which is unfortunate as that's where we are based.  Very few people have bothered to add a covering letter and those with covering letters are usually non-specific general non-sense that clearly hasn't been thought through properly.

The problem with having so many applicants is that we just haven't been able to properly consider even half of the applicants.  Will all the applicants get a reply?  Definitely not, we would have to employ somebody else just to respond.  Will we miss some excellent applicants?  Probably.