The Defence Brief

At the start of 2012, the Magistrates Association began a campaign called "Stop Delaying Justice", I wrote about it at the time . Yesterday I was in court acting as duty solicitor when I was faced with a young man who had allegedly committed an offence and was being prosecuted by the Probation Service - the offence was failing to comply with a Supervision Notice, which is a three month licence package given to offenders under 22-years of age who are released from custody.  It is punishable with a prison sentence and, in this case, the Probation Service made it clear that they were asking for the maximum prison sentence to be imposed. I won't go into the exact nature of the alleged breach of the Notice beyond saying that much of it was highly questionable and when I did question it a large chunk of the allegations was withdrawn almost immediately. The probation prosecutor wanted to rush straight into a trial there and then.  I politely asked how she intended to prove...

The Government is proposing that people released from prison will have mentors to help them get back to a normal, law abiding life.  This is great news, except that I kind of thought that was what probation was supposed to be doing as part of the supervision that is part of most ex-prisoners licence.  Admittedly probation won't get involved with very short term prisoners, but then again if there are in for such a short time will they have a chance to build up a relationship with their mentor prior to release, which I understand is the whole point? I'm going to let you into a little secret, which is that the majority of petty crime is committed by people who grew up in poor and dysfunctional homes - at least that's what my experience tells me.  I can name one man who became alcoholic thief despite coming from a very wealthy family, attending private school, university and having all the privileges you could want in life.  But, he sticks in my mind because ...

I have come up with a brilliant idea that will enable me to grow my business faster, with less red tape and bureaucracy.  It's so simple that I can't believe nobody else has thought it up. Put simply, I want to make it harder for people to sue me or challenge my decisions.  I think that by doing this I will be able to do pretty much what I like when I like.  This will enable me to take positive decisions, not only for my business and myself but also for the wider community.  Ultimately, I'd like to see a system where it is either unlawful or so mind-numbingly expensive to sue me that it's easier just to let me get on with what I like no matter how much it screws up the lives of other people... I think I'll call these other people the "ordinaries". By now I'm assuming that you all think I have lost my mind, if you do then you must be a smelly oik ordinary.  My plan may sound like the ravings of a power-hungry lunatic, but they are exactly what our...

There are a few things that suggest a country is heading toward a police state, such as the introduction of obligatory ID cards, monitoring of citizens behaviour and movements and taking justice from the public view into a secret world. How are we doing?  On ID cards we don't have them thanks to some serious criticism despite concerted efforts by both Tory and Labour governments.  On monitoring, the Sunday Times reported yesterday that Capita have created a database, called One, that contains lots of very personal information about 8 million British children, including addresses, photographs, school reports and some medical information.  Crapita make clear that there is no central database, each council has its own local database.  Crapita also sell software they call API, which allows police, medics, local authorities and quite a few other organisation.  But that's okay because Capita say very few organisations have bought the API software. Also on monito...

The Government are to do away with committal hearings, although it's worth saying that this policy was announced about 16 trillion years ago but nothing seems to have happened since 2001 when committal hearings were abolished for indictable only offences. I am aware that some of my readers may not have the first clue what I'm on about, so I'll explain a little - if you know what a committal hearing is then skip this paragraph.  All criminal cases begin life in the magistrates court.  Some cases can be tried in either the magistrates or Crown Court, these are called "either-way offences".  If the magistrates decide the case is too serous for them to handle, or the defendant chooses to have his case heard by a jury then the case is committed for trial.  This means that the prosecution are given several weeks to photocopy their witness statements and produce whatever evidence they intend to rely upon.  At a committal hearing the papers are served upon the defence...

I am fed up with constantly hearing that the Government as a whole and individuals within it are out of touch with real life. They are not.  Even the rich ones have kids, go to work and own houses.  Yes they may have a bit more cash than the rest of us, but that does not make them out of touch.  That's like saying being poor is the default position of the human race and we should all aspire to poverty so we can keep in touch with our roots.  It's nonsense.  Look at Andrew Mitchell.  He had a crappy day, got wound up and acted like a prat to somebody who didn't deserve it.  Who can honestly say they haven't been rude to somebody they shouldn't have been rude to?  I'm not excusing him, I'm merely saying that he shows us that he's a bit of a twat when he's in a bad mood like most people in the world.. even Mother Theresa was said to be rude to her nuns at times. If we are going to criticise the Government and the individuals within it then let us...

Since I started my ultra niche solicitors firm, Biker Defence Solicitors , which caters for motorcyclists accused of road traffic offences, I've been paying a lot of attention to other drivers. The one thing that has jumped out at me is that people seem to have difficulty obeying multiple part rules, e.g. Highway Code Rule 185: when approaching a roundabout you should give way to traffic approaching from the right (part 1) and give way to traffic already on the roundabout (part 2).  Another example comes from Rule 174 that governs those yellow box junctions that you must not enter unless your exit is clear (part 1) unless you are turning right and only traffic coming across the junction is preventing you from turning right out of the junction (part 2).  I should say here that I'm paraphrasing the rules and I realise that Rule 185 is more complex than I give it credit for, but I have set it out in the way it was always taught to me as a learner. As well as my Highway Code I...

I have just read an interview on the BBC news website that makes me think an appeal could be coming from Samsung against the jury finding that they infringed Apple's patent. In England and Wales, we do not have juries for patent disputes any more.  Nowadays juries are used only in criminal and coroners courts.  When a jury does sit in a criminal court it is illegal for the press to report on the deliberations of the jury.  In fact nobody should even be asking any jury member what was discussed in the retiring room let alone reporting it.  Now, I know things are different abroad, which is interesting because you get to hear how juries reached their conclusions and that is helpful to British lawyers, like me, who may want to adapt particular elements of their presentation where a trend appears to present itself. In this country, juries take the law from the trial judge especially where a jury member has a different opinion on the law!  Lawyers, including judge...

I was in the Crown Court yesterday for a case.  My client has two co-defendants.  The best I can say about the charges they face is that the prosecution lawyer who drew them up was being very imaginative at the time.  It seems to me that the Crown have no hope of succeeding as the indictment stands. There is another charge that could be brought in place of the current very imaginative one.  If the Crown were to change charges then the defendants would suddenly struggle to win their trial; they still have a chance but its a much more close run thing. My learned friends have also noticed this deficiency.  Much to my frustration, they have chosen to handle it by listing the case for a dismissal argument.  This is basically where you tell a judge that the prosecution case is hopeless and ask him to throw the case out of court without a trial. A dismissal argument is all well and good, but all they have done is highlighted the problems with the current cha...

Let us for a moment imagine a scenario where a group of balaclava wearing individuals burst into St Paul's Cathedral and staged an impromptu foul mouthed protest against the British government in which the protesters sung (having seen the protest video I must say I use the word "sung" very loosely) an expletive filled re-write of the Lord's Prayer. Would Pussy Riot have committed a criminal offence in the UK?  Yes, it is highly likely that they would be committing an offence under s. 4A of the Public Order Act 1986, which makes it an offence to intentionally "cause a person harassment, alarm or distress" , by using "threatening, abusive or insulting words or behaviour or disorderly behaviour" . Is storming a church and offending the people therein sufficient to make out the offence?  I don't know what the lyrics were, but the reports indicate that they were highly offensive.  Would that cause a group of nuns and priests distress?  Quite pos...

The TV and press are reporting that Ian Brady's lawyer has been arrested for preventing a lawful burial by not revealing the whereabouts of Keith Bennett, Brady and Myra Hindley's last undiscovered victim. First, it would seem that the lady who has been arrested is not in fact a lawyer so I'm not going to harp on about breach of legal privilege etc.  Instead I wanted to tell a short story about a client I represented a few years ago. There was a rugby match at Twickenham and I ended up representing every single fan who was arrested that day... all five of them.  They were picked up on a Public Order Act offence, the details of which are not relevant.  Four of the men were released but one was further arrested for murder and kept in police custody. I met the murder squad detectives and was given disclosure along the lines of: There was a murder in 1995 [I can't recall the year, but it was a while ago] .  We know your man didn't do it and wasn't involved, bu...

This morning I have been reading some extraordinary rubbish in The Times about the wearing of helmets by cyclists. It is suggested that making helmets compulsory would reduce the number of people cycling.  This claim is based on evidence from Australia where there was about a 30% decrease in cycling when helmets were made compulsory. But, let's think about it for a minute.  I am currently looking to buy a bicycle and while you can get some pretty rubbish bikes for around £100, anything remotely decent seems to start at around the £399 mark.  You can buy a helmet, which, should you fall off, will substantially increase your chances of survival, for just £9.99 from Halfords.  Whether you're spending £100 or £1,000 on a bike (and incidentally one of my local shops has a lot of bikes at over £5,000 each!) an extra £9.99 is not going to break the bank.  In any event, you'd imagine that if cycle shops were concerned about a serious loss of trade they'd start runni...

The (in his own words) "morally repugnant" David Gauke is at it again. This time he is branding those who offer to pay tradesmen cash in hand as being "morally wrong".  For once he's actually talking some sense because paying somebody in cash to evade paying tax is a criminal offence.  The tradesman would be guilty of evading VAT or income.corporation tax or both.  Because the buyer and seller are acting together to avoid tax they would be guilty of conspiracy to evade whichever tax(es) it is they are agreeing not to pay. According to the BBC report, Boris Johnson admitted that he has paid tradesmen cash in hand many times.  If that's true and it's with the intention to evade paying tax then he is guilty of conspiracy to evade tax.  Although a large part of me suspects that BoJo simply didn't understand the question It does seem to me that Government Ministers have found a phrase they like, "morally wrong", or "morally repugnant...

The Government is once again promising to clamp down on the lawful efforts of people who attempt to keep as much of the money they have earned through lawful work/investment as possible. David Gauke MP, Treasury Minister, proposes to "name and shame" those using aggressive tax avoidance schemes.  Presumably, the press release will read something along the lines of: "here is a list of people who have done absolutely nothing illegal in respect of their tax." Since he is so keen on naming and shaming those conducting themselves in ways that our Prime Minister described as "morally wrong", he won't mind me mentioning that he avoided paying £10,248.32 worth of tax in the form of stamp duty when he chose not to pay it but instead to claim it on his Parliamentary expenses.  If you believe that trying to keep your own money is "morally wrong" (I think Mr Gauke actually uses the words " morally repugnant" himself) then you must think tha...

To tell the truth, I've lost count of how many hints and tips I've done, so this could be number 5 or 3 or 4 or 6... I just don't know. The theme of this tip is to TELL YOUR SOLICITOR WHAT OUTCOME YOU WANT TO ACHIEVE.  I always ask clients what they want and they usually look at me like I'm some kind of idiot who can't work out that they just want to a. get off; or b. get out of prison. Quite often people mistake me for their doctor and tell me lies.  Now that's fine if you're trying to convince a doctor that your smokers cough is nothing to do with your 40 a day habit.  But, if you want to get out of the cells then there's no point in lying to me. I was court duty yesterday and after several loooooong hours I finally got a client.  He was in for a minor shoplifting, but with 120+ previous convictions the likelihood his being released were very slim.  A fact I made crystal clear.  He instructed me that he has alcohol problems and was desperate for ...

CrimeLine - pretty much the foremost provider of legal news and training to criminal lawyers - reported this morning that changes to Defendant's Costs Orders are expected to come into force this October. A Defence Costs Order is something you get if you have been falsely accused of a crime, you pay for your own defence and you win your case.  It's simply a branch of the concept that the loser pays, in other words, if you are in the wrong then you get to pay the costs.  So, a convicted defendant can expect to pay towards the prosecution costs just as the prosecution get to pay toward the costs of an acquitted defendant.  Sound fair?  I think it is. As of October, this is set to change.  Companies falsely accused of crime will have to pay for their own defence full stop.  Defendants in the Crown Court must either accept legal aid (with contributions of up to £900 per month) or pay privately in the knowledge that following an acquittal they will not receiv...

I went along to court yesterday for a first appearance in a case where my client and two others are accused of conspiracy to commit GBH. First, I must say that the co-defendants' solicitor was delightful, insightful and extraordinarily clever... she must have been since she described me as inspirational and amazing.  She also suggested that I could earn a lot of money, "because of who you are."   Come to think of it, she may have thought I was somebody else. Anyway, we had very different views of the case.  She said she thought the defendants would have to plead guilty in the Crown Court.  I was a little astonished.  I hadn't (and still can't) see how the prosecution can possibly prove their case given that the evidence indicates that the "victim" attacked and stabbed my client and that the victim was never attacked and did not sustain any injuries.  In the first place, I can't see the complainant actually showing up to court to make a complaint ...

Regular readers of this blog will realise that I have a particular dislike of politicians and that I consider most of them to be part of a corrupt sub-human species and that entry to Parliament should require each potential MP to answer the question "Do you want to be an MP?"  Those who answer yes would be automatically barred from the job.  There are a few MP's who have real-world experience and who are thus not as bad as the others. This is why I was quite pleased when I heard that Louise Mensch was involved in the launch of Menshn, a new rival to Twitter.  Anybody who casts their eyes to the left will see that I use Twitter for discussing the law, politics and trying to convince everybody to ride a motorbike.  I don't use Menshn. There's no particular reason for that, aside from that it only launched the other day and, to be frank, I still feel like I'm involved in Twitter and Facebook far too early in their lives for my liking. There have been a lo...

If you came here looking for information about Jimmy Carr or to join the Jersey based K2 tax avoidance scheme then you are about to be disappointed as this blog post isn't really about either of them. This week saw Dave Cameron show his somewhat hypocritical side on the issue of tax when he branded Jimmy Carr's involvement in K2 as "morally wrong". Before going further, I'd like to clear up one thing.  In respect of tax, anything involving "evasion" is a crime and very naughty.  But, anything involving "avoidance" is legal and above board.  There are incidents where a scheme is set up to avoid tax, but where it is subsequently found to be in breach of the rules.  HMRC can then require payment of the underpaid tax and they usually do so with interest being charged.  So, a properly devised and managed tax avoidance scheme that is disclosed to HMRC is perfectly legit. Given that HMRC are aware of K2 and have yet to indicate that it is anythi...

An MSP called Rhoda Grant has put up a bill that will make paying for sex a criminal offence I read today.  You could be forgiven if you thought that this was already a crime, because we generally speak as though it were.  But, in fact the offences relating to prostitution do not outlaw the oldest profession in the world but they do attack some of the more visible aspects of the sex trade. For example, if a woman (or a man for that matter) were to accept money in return for sex then no crime is committed.  If she accepted money for sex where somebody else is also selling sex then that's a brothel.  If she is hanging about on the street looking for kerb crawlers then offences are committed by both the purchaser and the seller of sex. So, if you were to put an ad on an internet site offering call girl (or gigolo) services off of your own back and the transaction took place entirely in private where nobody else was working then neither party is likely to be committi...

Theresa May has been criticised quite a bit over the past couple of weeks and she's been taking it in the neck from the Guardian and many lawyers over her suggestion that the right to a family life is a qualified right that can be overridden in some situations.  More importantly, she's upset lawyers by suggesting judges use their power under the Immigration Act 1971 to recommend deportation from the UK of foreign criminals. Now, I may upset some of my learned friends, but I actually agree with Theresa on this one.  As Lawson LJ said in Nizari , "This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records." I have dealt with a number of defendants who have committed very serious offences but who have escaped deportation for reasons I've never fathomed.  In one case, drunken failed asylum seeker disagreed with a doorman's decision to remove him from a night club as a) he was e...

I previously wrote, here and here , about a case of a young person who was convicted and sentenced as part of the London riots.  The posts were ostensibly about the conduct of the chair of the bench of magistrates rather than the case itself. Today the case came before the Crown Court for appeal and the defendant was acquitted... the original trial advocate is now looking rather sullen, although from what I hear from the defendant and family he conducted the trial as well as anybody could have done, just on the day the tribunal were not with him.

I have just noticed a press release from the Home Office that explains the police are to be given more powers to prosecute certain types of offences.  It even says in bold at the top that the police will handle 50% of magistrate court cases! I must admit that I am completely perplexed by the rationale behind this, which may be the result of a badly worded press release.  It seems that police officers are having their time wasted by sitting about at court and so to solve this the Home Office wants police officers to do all the work in court.... that's my reading of it any way.  The press release says, "The bureaucracy cutting move will see about 500,000 cases taken through the courts by officers " (my emphasis).  That looks like it is saying that the police will be expected to stand up and present cases, which should be a laugh although I can't see how that will either save police officers time nor speed up justice. Currently, police officers prepare the evidenc...

We're in the middle of the long Jubilee weekend for Liz's 60 years on the throne and it's been quite fun reading and listening to all the weird and wonderful reasons for ditching the monarchy.  None of the reasons I've heard have convinced me so far and I'll talk about some of the better reasons in a minute.  First, I should come clean and admit I am a bit of a Royalist.  Not in the sense that I've been out waving flags or anything but in the sense that I prefer the Queen to yet another elected politician who is only going to lie to us for a few years then lower tax for a week in a effort to keep his job.  I also played in a sandpit with Prince Charles as a kid, but I haven't let that cloud my judgment. My favourite 3 reasons to become a republic in no particular order: Their armies fought to obtain and maintain their position They have too much power and are unaccountable They don't serve any function Now let's have a think about each one in...

A few months ago I wrote about an encounter I had with a lay magistrat e. As it says in the comments section I did eventually decide to make a complaint. Today I received a letter from the Bench Chairman informing me that the magistrate in question "... agrees that her conduct was not acceptable..." and states that the JP in question will be refered for further training. I can honestly say I did not expect such an honest and open response.

I've mentioned the apparent lack of enthusiasm the police and CPS seem to have for charging people with crimes and as I sit here billing I am seeing yet more examples of it. I won't go into detail, but one case I have is very simple and clear cut.  Ex-partners meet up to discuss sale of former home.  One of them gets upset and punches the other in the face several times causing minor injuries.  The suspect is obviously known to the complainant so no ID issues.  Result: no further action.

I spent a rather enjoyable Sunday riding around with the Surrey motorcycle police as part of the Bike Safe programme that many police forces run across the country. I can only imagine the confusion that some motorists must have felt seeing me fly past both them and a fully marked police rider as we practised overtaking.  I even felt a bit sorry for one silly sod who seemed barely able to ride a motorbike and found himself and his expired tax disc in the middle of a big group of policemen. The day was good fun despite the early tellings off from the officer observing me to stop speeding - both I and the other rider who spent the day with us found it very difficult to keep the bikes at low speeds especially on the more open roads - and generally doing things that we all do everyday in London, but which are not seen so often on rural Surrey roads. I learnt quite a lot from the day and would definitely recommend it to anybody else who rides a motorbike and who would like a few t...

There was a bit of a debate on Twitter last night about solicitor-advocates in the Crown Court.  These debates generally annoy me a lot.  As with last night they'll kick off with a barrister saying something that ridicules or undermines solicitors with no factual basis.  For example, last night the theme was, would solicitors keep a case for themselves even if a barrister would do a "better" job.  In other words, do solicitors ignore their professional obligations and act even where there is a conflict between their personal interests and those of their client? Now, this is frankly offensive to me as a solicitor. The Solicitors Practice Rules have long contained rules that require solicitors to put their clients' interests before their own.  There is nothing different between the rule that has existed for a very long time and the current position with solicitors deciding whether or not to instruct Counsel. Many of the arguments I hear from the Bar is put i...

I was court duty today.  I was sat in court minding my own business when I heard the judge mention my name.  I hadn't been listening since I wasn't involved in the case and I'd decided to actually read at least one copy of the Guardian, which I subscribed to on a whim about a month ago and haven't accessed since. Anyway, I somehow feel that I may be straying from the point. Turned out that the judge was trying to fathom why the defendant hadn't attended either of his appointments with probation for a pre-sentence report to be prepared and she was asking me to speak to him.  The judge made it clear to the defendant that unless he could explain why he failed to attend to the appointments satisfactorily she would remand him in custody to allow the report to be prepared. I took him outside and tried to explain the seriousness of the situation; however, he continually told me that he missed the appointments because a close relative went into hospital a week ago.  I...

This is the first time I've tried to include a video on a post, so hopefully the link works. Bystander on the Magistrate's Blog has previously talked about the people who seem to think that they are only bound by Common Law and not by statute.  They are in a world of their own.  Some people have suggested that they are mentally ill, but they aren't.  The majority seem to be extreme examples of what happens when you know a little bit about a subject... just enough for that knowledge to be harmful. The lady in the video asks for help.  The only advice I can give is to stop being so silly as to think the law doesn't apply to you. I don't know who the police officer in the video is, but I must congratulate him on remaining so calm and polite when faced with such an onslaught of utter rubbish. Incidentally, I have no idea what the title of this post means, but it seems important to people like the lady in the video, you can read more about their very inter...