Thursday, 6 December 2012

Stop delaying justice is going too far

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beyond saying that much of it was highly questionable and when I did question it a large chunk of the allegations was withdrawn almost immediately.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 her case given that she had no witness statements for me to even consider agreeing and none of the "evidence" she did have was in an admissible format.  She told me that courts didn't need to trouble themselves with such tedious things as the rules of evidence where probation prosecutions are concerned.

In court, the clerk confirmed my view that this was a criminal prosecution, rather than mere breach proceedings, and that the normal rules of evidence applied.

As I said, the Probation Service had produced no evidence whatsoever.  Both the clerk and the magistrates took the view that I should simply draft some section 10 admissions to agree the Probation Service's allegations so that we could have an immediate trial and the court could consider whether or not the defendant had a reasonable excuse.

I said no.  I am of the opinion that if the state wants to send somebody to prison they should at least go to the effort of producing some evidence against the defendant and... you know kinda proving their case.  I don't think it's too much to ask that the prosecutor provides evidence of guilt when trying to send somebody to prison.

The magistrates and clerk then began a bizarre haranguing of me saying, wrongly, that the Criminal Procedure Rules required them to deal with things swiftly above all else and that I should stop trying to delay justice as that is against the principles of the Stop Delaying Justice initiative.  In fact the overriding objective of the CrPR is that cases should be dealt with justly, which include acquitting the innocent and convicting the guilty.

I confess to being shocked at the tone emanating both from the court's alleged learned legal advisor and from the bench itself.  I agreed to end my obstruction of swift justice immediately... well I said I'd end my obstruction as soon as somebody showed me a part of the Criminal Procedure Rules that negates the need of the prosecution to prove their case beyond reasonable doubt or that overrules the normal rules of evidence.  Unsurprisingly, the clerk and bench had to admit that there is no such provision.

Much to my annoyance, the legal advisor (who if you don't know, I should explain is the proper name for the clerk of the court) then stated that it was clearly not possible to have a trial as Mr Diable (moi) wouldn't allow us to proceed now.

I jumped up to my feet and pointed out that I was perfectly happy for a trial to go ahead, which is what probation and the court both seem desperate to do.  Probation could adduce all of their admissible evidence (of which they had none) and I would invite the court to return a not guilty verdict.  Justice need not be delayed.

However, it seems that we only stop delaying justice when that makes a case impossible for the defendant not for the prosecution.

It's also worth saying (as the court clerk did in an effort to make me go away) that as duty solicitor I am not supposed to represent defendants at a trial.  Had I withdrawn as I strictly should have done when the case became a trial, I have no doubt that the young defendant would have been persuaded to allow the trial to go ahead without any evidence from the prosecution and would probably have been convicted and be in prison now.


The whole case from the lack of disclosure to the court trying to press ahead without requiring the prosecutor to produce a shred of evidence put me in mind of The Trial by Kafka.  This should not be happening in courts in 21st century Britain, but it does and as more defendants represent themselves due to legal aid cuts you'll see nonsense like this happening more frequently.

Wednesday, 21 November 2012

Prisoner mentors could be more use elsewhere

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 he is so unusual.  To be honest, the regular punters merge into one because they all have similar stories to tell, which often involves a broken home at the very least, frequently drug and/or alcohol abuse by their parents, often neglect as children but sometimes worse.  I had a prolific car thief who in one spell stole 7 cars in 7 days.  He was about 15.  He ended up in prison; it turned out that he was being regularly raped by his father!  The courts had no power to help him in any significant way and it may have been a mercy for him to go into custody... he certainly did not complain or attempt to avoid that outcome.  He wouldn't make a formal complaint so the police were never interested.

I attended a police station at the start of this week for a 14 year old who had been arrested for a serious offence.  His mother showed up reluctantly after leaving her son in the cells overnight because she did not want to come to the police station.  I understand some arm twisting by the police took place to get her there.  She arrived and spent most of the time I saw her slowly eating her way through the contents of her bag and not paying attention to the very serious position her young son was in.

I could sit here giving examples of parents who simply haven't cared about their children, or who have actively harmed them, all day and all night.

One thing that won't surprise you is that these children all end up in police cells and later prison because their parents have failed utterly to teach them any respect for authority or even how to behave in normal civilised society, which is why so many in this group think it is acceptable to rob and steal, shout abuse at others and so on.  Many also grow up with a notion that benefits are their right and working is for mugs... but that's a whole other story.

The other outcome is that the children become victims of crime.  We've seen graphically how this can happen in the north recently where young girls, who were often in care homes, have been abused.  One thing that rings out from many of the stories is of girls who literally had nobody to turn to.  Yes, there were some who came from "normal" families, but most seem to have come from the same sort of broken family backgrounds that create the petty criminals.

The plan to mentor prisoners after release is rather like the stable owner who bolts the stable door after the horse has bolted.  It also shows a tacit acknowledgement that the probation service is unable to carry out its job effectively - which I suspect is because the government won't fund it properly.  Of course, there's a good reason the government want to focus on prisoners because it is easier to make the connexion in the electorates mind between reducing crime and government activities when you can use words like "ex-offender" or "ex-prisoner" than when you use words like "child".

I've read time and time again about children being turfed out of local authority homes when they turn 16 into their own flat with no support and no idea how to run or manage their lives.  Why not use this mentoring scheme to help children both in care and in dysfunctional families?  Help them build a relationship with a strong adult figure who can guide them and help them?  Such a scheme would cut crime in two important ways.  First, it would help potential criminals avoid a life of crime and secondly, it would help potential victims avoid becoming victims.

Barnardo's already run mentoring schemes to help families and children in just the sort of situations I'm talking about in this blog post.  They help families from when children are young right through to young people at the start of their adult lives.  Imagine what schemes like this could do if they were properly funded by government rather than relying solely on charity!

You can read about Barnardo's work with young kids right through to young adults by following this link... you can even donate if you feel the urge.  Click on the links at the top of the page to see what they do at different ages.

Monday, 19 November 2012

I want to limit your access to justice

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 esteemed Prime Minister wants to impose.  He described challenges to government policy as often being "time-wasting" and blamed lawyers for creating a massive growth industry in challenges to government policy.

I'm no civil lawyer, but even I know that if a claim has no basis in law or fact or is an abuse of the court process then the defendant can apply to strike out the claim at a very early stage in the proceedings in accordance with Rule 3A of the Civil Procedure Rules.  I'm sure that the Attorney-General would have advised Dave C of this rule, which can only lead me to the conclusion that what he really means is that the cases are "time-wasters" because he thinks that anybody with a different view to him is, in one way or another, stupid.

Judicial Reviews are what Davey is talking about.  Now these are not simple applications and I am confident that the vast majority are brought by people who are paying relatively expensive lawyers to act on their behalf.  You do not JR a decision lightly or unless you think that your cause is right and you have a decent chance of winning your case.

This is the latest in a long running effort by successive governments to limit the access of the ordinaries to courts.  In the past they have taken very strenuous efforts to prevent people obtaining legal aid; in most areas of civil law legal aid no longer exists.  The government recently changed the rules so that if a government agency accuses you of a crime and you pay for your defence (because legal aid is no longer available) then you will not get back all of the money you paid out!  All of this creates a system that is harder for the ordinary person to access and thus makes it more likely that people will take the path of least resistence, which is always to agree with the government.  Thus they lose less cases, pay out less in costs to their victims and can claim that they have improved crime stats (or whatever) when in fact all they have done is hidden the problem from sight.

Attacking access to justice is an obvious target for politicians.  First,because it's always dressed up as an attack on lawyers - lots of people hate lawyers and think that we all live in multi-million pound homes, eating from our golden plates and waited on by teams of servants.  Secondly, because lawyers keep telling politicians what to do - as examples I give you Theresa May's response to Abu Qatada's case and the response of Sally Bercow who is being accused of defamation (she appears to have claimed that what is happening to her is all the fault of Lord McAlpine's bullying lawyers).

Attacking lawyers is therefore good because the public love it, party members love it and it helps the government to do things that it would otherwise not be able to do.

Be warned: the government is not seeking to limit your access to justice because they think that your not being able to challenge them will make your life better.  They are doing it because they want to make their own lives easier!  If you read my claim to want to be exempt from the law at the start of this blog and imagined how terrible it would be to have one man immune to the law, then imagine how disastrous it would be to have a whole government virtually immune to the law!

Monday, 12 November 2012

Secret trials and the police state

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 monitoring, there is regular chatter from government about road tax, particularly the replacing of the current system with one that charges you per mile driven either through a hugely intrusive CCTV network that monitors your ever move or through the instillation of GPS equipment in all vehicles.

There are other examples, but this blog post is already a bit too long for comfort.

Finally, we move on to secret trials.  Why does it matter if trials are held in public?  In fact, wouldn't it be better if suspects identities were protected by holding all trials in private so that the innocent do not have their reputations tarnished?  Trials are held in public because where trials are held in secret there is a high risk that improper procedures will be used, inadmissible evidence will be heard and fairness will go out of the window.  It may not happen.  It's entirely possible that human nature would not assert itself as it always has done in the past when somebody is given wide ranging powers with little or no accountability. 

Trials are held in public so that the people can see what is happening and keep lawyers and judges in check!  

We already have secret trials in criminal law, the prosecution is allowed to call evidence that is never shown to the defence or the defendant.  It is even presented to the court in the defendants absence.  He has no opportunity to challenge the evidence either through cross-examination or by calling evidence to counter the secret evidence.  If that does not give rise to a serious risk of miscarriages of justice occurring then I don't know what does.  It's true that the defendant has a special advocate appointed who "represents" the defendant.  But, since he cannot discuss the evidence with the defendant and is appointed by the court not the defendant the special advocate can hardly be said to be ideally placed to act for the defendant and, to be blunt, I am not convinced that fulfilling such a role is ethically acceptable for a lawyer, but hey ho what do I know?

The latest calls for secret trials come from the beast that is Ken Clarke, Minister without Purpose, Point or Portfolio.  The new proposals cover civil proceedings and would allow the government to put secret evidence before the court, which cannot be challenged by the claimant.  Bear in mind that the people suing the government will be those who have been held unlawfully and against whom the government has already failed to prove its case beyond all reasonable doubt even with the secret trial procedure available in far too many cases.

It is important to look at the reasons Ken is putting forward for these secret trials, because they will change later on, just like the reasons for war with Iraq evolved over time when it became clear there were no weapons of mass destruction.

The main reason appears to be that secret trials are needed to avoid the government having to pay compensation.  He cites the case of the men who were released from Guantanmo Bay against whom no charges were brought by either US or UK authorities and who were held in captivity for many years and tortured.  Ken says the government couldn't defend their claims because the UK couldn't disclose secret evidence... although remember there is a criminal process they could have used to secure a conviction but chose not to, which says a lot about their evidence!

Robert Buckland (Conservative), a member of the Commons Justice Select Committee, says that secret trials are needed to prevent the flood gates being opened on "... a torrent of new claims."  This is serious, we can't have lots of victims of false imprisonment and torture all seeking redress against their abusers in legal proceedings now can we?  Obviously, terrorists know that the UK government is powerless to defend itself so there must already be a lot of cases in the pipeline?  Er... well there's 20.  Hardly flood gates time.

I don't like to accuse fellow lawyers of misleading anybody, but when Mr Buckland said, "Our enemies will begin to realise that our justice system is an open goal and come rushing with spurious claims knowing the Government will have to pay out", I can't think of what else he was doing.  Nothing prevents the government defending itself and if a claim is "spurious" then it's difficult to see why secret evidence would be necessary.  You might think secret evidence would only be necessary when claiming you were right to treat somebody in the way complained of.

Mr B goes on, "Even more serious, genuine claimants have no hope of getting their claims properly examined."  I must confess to not following his logic here.  As a judge, I assume Mr Buckland is aware that court rooms are not therapy rooms; they exist as a setting where disputes are settled.  If a claimant has a genuine case and the government accepts that then why would the government be going to trial?  They would simply admit liability, exactly as they do now.

You know you have a weak argument when you start saying "that's something Hitler would do", but Hitler did introduce secret trials for treason, which no doubt would cover much of the activities that fall under the modern definition of terrorism.

The reasons for the government now wanting trials held in secret are, to be blunt, weak and amount to little more than a government trying to escape liability for their own actions.

Do we live in a police state?  No.  But, government after government make efforts to monitor us more frequently, more intrusively and for weaker reasons.  They consistently move to limit access of the ordinary man on the Clapham omnibus to justice by making it harder to challenge them or by limiting access to funds, such as legal aid, that are necessary to allow legal actions to be brought.

20th century Germany before the Nazi's was unremarkable in terms of civil liberties.  I doubt many people could have foreseen what would happen in the middle 30's onwards.  I don't suggest that we are about to enter a full police state, but equally you cannot give today's politicians too much power over your life with little accountability because you never know what future political leaders will be like!

Monday, 5 November 2012

Committal hearings to be scraped

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 and the court.  If there is a case for the defendant to answer (what is known as a prima facie case) then the case is formally committed to the Crown Court and the defendant will appear there at some point in the future where he will enter a plea and a trial will be heard some months after the first appearance in the Crown Court.

My first ever appearance in court was a committal hearing.  It lasted approximately 30 seconds, I nodded once to indicate I was content for the case to be committed and asked that legal aid be extended to cover the Crown Court hearing.  It was painfully obvious to me that these hearings are pointless, cause delay and expense for everybody involved, including the defendant, court, prosecution, defence solicitors, police and victim (victims don't attend but the committal stage does delay when they get to have a trial and tell their side of the story).

From my first experience in court nothing has changed my view that committal hearings can and should be abolished.  In theory, the committal hearing allows the defence to challenge prosecution cases that lack any evidence against the defendant.  In practise, the committal stage is used by the defence and court to punish ill-prepared prosecutors who fail to get their papers in order prior to the hearing date.

The committal hearing is there to ensure that there is a case for the defendant to answer and so they are, quite rightly, very biased in the prosecutions favour.  Committal hearings remain important because there is no way of easily challenging a case once it has been committed except by taking it to trial.  However, this is easily solved.  Simply allow the defence to have the right to make an application to dismiss at the first hearing in the Crown Court.  The overwhelming majority of cases will remain unchallenged.  Those that are challenged should suffer no delay because the hearing in the Crown Court should come around much faster without the 4-6 week adjournment prior to the committal hearing that defendants currently experience.

The Times reported today that, "... the move will lead to concerns among some solicitors, who fear that efficiency reforms threaten to compromise the interests of justice."  I suspect that the Times is trying to create some controversy over this change.  In reality, I think most solicitors will realise that this is a win/win situation.  Defendants and victims win because their cases are resolved more quickly.  Solicitors win because they haven't been paid to conduct committal hearings for some time now and so they'll no longer have to do massive amounts of pro bono work on every single case they take (bear in mind a standard Crown Court trial fee for a two day burglary trial is now £386.54, which currently covers at least two hearings in the magistrates court, at least two hearings in the Crown Court, the time spent reading the papers, attending on the defendant, taking any witness statements and preparing the various documents that are required before a trial can take place), so removing the committal hearings will effectively give solicitors a small increase in the potential profit on each case, which I can tell you is non-existent as nobody can make a profit on fees that small for that much work.

In short, this is one good thing that this or the previous government have done to the Criminal Justice System for a very long time.

Tuesday, 30 October 2012

The Government is not out of touch

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 do it for the right reasons.

As a whole the Government has shown itself to be incompetent (e.g. train franchising, handing court interpreting over to ALS, two tier road tax, police cuts, attacks on legal aid, student tuition fees, etc) and populated by fools (Andrew Mitchell (who even if he is like everyone else still should have known better), George Osborne (who can't buy the right train ticket before travelling), Nick Clegg (too many reasons to mention), Ken Clarke (for shafting the CJS like certain footballers shaft cheap elderly prostitutes), Dave Cameron (well for everything really), etcetera).

In summary, Government is no more out of touch with real life than anybody else... but they are incompetent and foolish.

Monday, 29 October 2012

Road safety

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 also have in front of me a copy of the flight operating procedures for a Piper PA-28 light aircraft.  Like the highway code, the flight operating procedures is a list of things you must do at each step of your journey, from getting in the aircraft and preparing for flight (in the Highway Code the equivalent rules are 89-102).  The flight operating procedures then take a pilot through pre-start checks, after engine start checks, take off and what to do on approach and landing.  There is also guidance for controlling the aircraft in flight and during emergencies etc.  The difference you notice between the flight operating procedures and the Highway Code is that the flight operating procedures do not include a single multiple step rule.

This pattern is largely repeated when you look at the Rules of the Air, which set out very clearly who has right of way.  No if's, no but's.  If two aircraft are on a converging course, the rule is "On the right, in the right".  Simple.  If two aircraft are approaching head-on, each aircraft must alter heading to the right.  These rules are so clear you read them and think, "but that's obvious" and they stick in your mind.

I wonder whether a similar approach might help drivers better understand and remember their responsibilities in their cars and on their motorbikes.  For example, instead of Rule 174 being a lengthy paragraph, why not simply "R174(a) When travelling straight ahead or turning left, you must not enter a box junction if your exit is blocked; (b) When turning right you may enter a box junction if only oncoming traffic is preventing you completing your right turn."

I seem to recall from my days studying psychology that the longer a sentence the harder it is for people to remember the bits in the middle.  So, I wonder whether a simplified set of Highway Code rules would help people to recall everything more clearly.

I'd also like to see a section at the start of the Highway Code that breaks rules down by priority or importance.  Rules about child restraints are probably completely irrelevant to 90% of 17 year olds passing their tests, whereas what happens when you drive like a prat on a wet country road in the middle of the night is something that is very important to know.  One of my friends managed to pass his test without ever learning that wet roads become slippery and you must driver slower... he found it out when we crashed through a ditch into a field one night.

These are just some ideas that have occurred to me recently.  I do not say that my style of Highway Code writing is more elegant... I don't even go so far as to say I am definitely right, but if I am then a very cheap re-write could do a lot to improve road safety.

Friday, 31 August 2012

Apple v Samsung round 2

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 judges, are now allowed to sit on juries in English criminal trials.  In one case, a judge of the Court of Appeal (Criminal Division) found himself sitting on a jury in a criminal trial.  I'm sure the trial judge was a bit nervous!  But, the appeal judge promised that he would take the law from the trial judge and would not give his legal opinion to other members of the jury.

In the Apple v Samsung case, the jury foreman says that because he works in the tech industry in California (co-incidentally where Apple is based) he has a good knowledge of US patent law.  At one point, he states that had he not been on the jury with his specialist knowledge then the jury may have reached a different conclusion! 

In another portion of the interview, the foreman suggests that while in the jury room he analyised and fully considered the source code provided by Samsung for it's pre-iPhone and post-iPhone telephones.  He says:
"... when we looked at the source code - I was able to read source code - I showed the jurors that the two methods in software were not the same, nor could they be interchangeable because the hardware that was involved between the old processor and the new processor - you couldn't load the new software methodology in the old system and expect that it was going to work, and the converse of that was true."
The important part to my mind is that he appears to be saying that he read the source code and, effectively, provided evidence to the rest of the jury about why Samsung's case was wrong.  It's worth remembering that this may well be what the American's call BS.  They were only deliberating for 21-hours and had 700 questions to decide upon so he can't have spent all that long pouring over code.  It may well be a man trying to big himself up.

In this country a jury must decide the case on the evidence before them, they should not be seeking outside evidence or generating their own evidence.  I don't know if that rule is different in Californian civil courts.  If the rule is the same in California then this could be a good ground of appeal.  In the British courts we had a jury producing their own evidence by smuggling a Ouija Board in to the jury room and attempting to contact a murder victim to ask if the defendant was guilty or innocent.

These are just a couple of points that occur to me from reading the foreman's interview transcript, I'm sure a patent lawyer with all the evidence could find more appeal points.

Big American companies are famously litigious... let's find out whether Big South Korean ones are too.

Friday, 24 August 2012

Tactics

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 charge to the prosecutor and thus made it far more likely that the Crown will amend the indictment to solve the problem.

Had they done it my way, we'd all have saved ourselves the effort of drafting a dismissal argument, there would have been a much better prospect of the Crown failing to amend the indictment and we could have argued the case out at half time.

As it stands, the prosecutor is already talking about amending the indictment on the next occasion.

It's all well and good showing off that you've spotted a problem in the other sides case, but I fear this will be a Pyrrhic victory.

Friday, 17 August 2012

Pussy Riot

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 possibly.  Certainly, in Russia they all gave evidence that it did.  Would the storming of the church alarm those inside?  Again, the evidence seems to suggest that it did.

Because of the expletive filled version of the Lord's Prayer it is likely that they would be guilty of the more serious offence of religiously aggravated causing harassment, alarm or distress.

The basic offence carries a maximum sentence of six-months imprisonment.  The religiously aggravated form of the offence carries a maximum sentence of two-years imprisonment.  Both can come with a fine additional to the prison sentence.

If Pussy Riot had carried out their actions in the UK they would have been committing a criminal offence just as they were in Russia.  I seriously doubt that a defence of lawful protest would have succeeded in this country any more than it did in Russia because of the aggressive behaviour and lyrics seem to indicate that the whole point of the protest was to be as offensive as possible and thus garner as much publicity as possible.

I think a lot of people should get off of their high horses about the convictions, because they would have committed an offence in this country and quite probably would have gone to prison for it... anybody remember the idiot boy swinging from the flags on the Cenotaph?

The real issue, which seems to have only received marginal attention amid all the hype about the three defendants and the glamorous stars who have supported them in their plight, is the antecedents of the court and judge.  While I think that an English or Welsh court would also have convicted, I did not that this judge has now acquitted just one defendant in the last 140-odd to have come before her... that's a worse record than our magistrates courts!  Also, why is there no jury?  I've not heard that question asked at all.  We do have lay magistrates and DJs who sit sans jury here, but they can only dole out relatively short prison sentences.

That is, in my opinion, the scandal.  The press seem to have largely over-looked the real problems that this trial highlights while focusing on the women and their new celebrity supporters.

On a final point, it's also worth addressing the issue that this case has only been brought due to Vladimir Putin's dislike of being criticised.  Maybe, but it must have been obvious to such an experienced politician that he could have minimised the effect of this protest by ignoring it.  If he has them prosecuted to stop their message being spread then it's been a singularly unsuccessful effort on his part.

Bully Boy Tactics

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, but we think he can tell us who did do it.  Why haven't you asked him before, I enquired.  Oh we have, Sir.  We've arrested him four times now to ask about this.  I don't expect he'll be any more helpful this time but we've got to keep trying.

Speaking to the client he took the view that it was just Bob, the policeman, playing his games and an arrest for murder was nothing to worry about.  Client wasn't even interested in taking action for what would appear to have been a completely unlawful arrest. 

Unsurprisingly, the client was released without charge, although it did take a long while for that to happen.

The point is this: sometimes some police officers use bully tactics, like this blatently unlawful arrest of a potential witness for a crime they knew he did not commit in order to force the detained person to give information that the officer wants.

I would love to give chapter and verse on the law of preventing a burial without lawful excuse, but it isn't covered by any of the law books I have at home.  I have to say that I doubt that what the arrested woman has done amounts to the offence, although I could be wrong.  I do wonder therefore whether the arrest is in the same vane as that of the man I represented.

Friday, 3 August 2012

Cycle safety

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 running promotions that include a bike and helmet for a combined price.

So, cost isn't really a reason not to wear a helmet.

Another argument is that wearing a helmet causes cyclists to be more reckless... personally I find it difficult to believe that some cyclists could be more reckless than they already are, but the majority are as careful as any other road user.  This isn't a new argument, it has been used for many years in respect of safety devices on cars.  But, the fact still remains that if you wear a helmet while riding your bike you are more likely to survive an accident.

There seems to be an attitude among many cyclists that it is the responsibility of others to be careful of cyclists.  This is correct.  But, that doesn't mean that cyclists should not take care of themselves.  Car drivers have long been advised to drive defensively, which really means drive like everyone else is an idiot and out to hit you.  If you learn to ride a motorbike that's pretty much the training you'll receive and when you undertake advanced rider training you'll find it's all about how to make yourself safe and reduce the chances of you being hit and others hitting you.

The argument that requiring people to wear a helmet on a push bike will reduce cycling misses the point completely.  It's not about cost, because helmets are actually very cheap.  Nor, is it about cyclists choosing to ride recklessly if they wear a helmet - some of the worst motorcycle riders you'll see are the guys in shorts, t-shirts and trainers on very powerful sportsbikes, not the rider wearing all the safety gear (come off a motorbike at speed without the proper gear and you'll have no skin and there's a reasonable chance your feet could be ripped off!).  The question is whether personal freedom not to take care of yourself is more important than reducing deaths on the roads?

If you think that the right to make your own decision on taking care of yourself is more important then I presume you also think that you should not be required to wear a car seat belt or a helmet while riding a motorbike?  If not, then I don't really understand your position.

There have been calls recently to change the law to presume that the driver of a motorised vehicle is to blame where there is a collision between a peddle cycle and the motor vehicle.  I don't think you can have it both ways, either you take all reasonable safety precautions or you accept that you are at risk of being killed if there is an accident.  I hope that no such law is introduced, but if one is then I would hope that not wearing a helmet is taken as a presumption that the cyclist was not acting responsibly.

I am not in favour of cycling helmets being made compulsory, although people should be encouraged to wear them.  At the end of the day, if you don't wear a helmet then you're the one who will end up dead.  If you don't mind doing that to yourself and your family then it's a decision for you.

Tuesday, 24 July 2012

Working cash in hand

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" and intend to run with it... cue the next election being fought on a platform of cracking down on all sorts of "morally wrong" individuals... though surely not a return to the single-mother bashing of the early 90's?

Monday, 23 July 2012

Tax

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 that making the tax payer pay your tax for you is tantamount to criminal behaviour.  Interestingly, Mr Gauke gave a speech, and I believe wrote in the Times, describing the purchase of a house through a company to avoid stamp duty as tax avoidance of the sort he wants stamped out... but having the tax payer pay your tax is presumably fine?

David Gauke's "morally wrong" behaviour doesn't stop there.  Earlier this year he advertised for an intern.  The intern's duties were described as including: "administration, basic correspondence, diary management, fundraising, campaigning and related tasks".  The appointment was for a minimum of six-months and although hours are not mentioned, that list of duties look like something that would require a full time effort.  So, our moral crusader looks as if he is attempting to avoid paying the national minimum wage... and the associated employers PAYE tax and national insurance contributions that go with it.  This from the man who is the Minister responsible for HMRC, which is the organisation that said, "[n]on-payment of the national minimum wage is not an option."

Let's stop playing the ("morally repugnant") man and play the ball for a second.  How does the "honourable" member for South West Hertfordshire choose to define aggressive tax avoidance schemes?  He says that they are schemes contrived to defy the will of Parliament by depriving the government of expected revenues.  In his speech he did say that putting money into an ISA is not tax avoidance, although it obviously is since it's entire purpose is to lawfully avoid paying tax.  This definition is so wide that it could include almost anything - including the activities of David Cameron's late father in Panama, his gifts to our PM and provision in his will for a trust in respect of his remaining property for his other children... all of which seem to have no function other than to avoid tax.

There is a reason why tax avoidance is so rife in the UK and that is because we have one of the most complicated tax systems in the world.  Last year, I had a very simple question for my accountant: "do I have to pay VAT on this income?"  The position was so complicated that my very experienced accountant didn't know, nor did any of her partners nor their team.  They had to call in advice from an outside VAT expert to give a yes or no answer.

Simplifying the tax system would cut out tax avoidance.  Unfortunately, the Government's plans seem to be to make the tax system even more complicated.

As a final thought, I'd like to say that I don't object to the Government closing tax loopholes and collecting tax from the super-rich.  What I object to, is the Government attempting to shame people for behaviour that is entirely lawful and is lawful because the Government have done nothing to outlaw it.  I appeared on a French TV documentary last year attempting to explain that in England and Wales (probably Scotland too, but I know nothing of Scots law) everything is legal unless the law prohibits it.  The Government appear to want to reverse that position where tax is concerned.

Friday, 13 July 2012

Hints & tips number 5

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 help from probation to sort himself out.  "Fine," says I.  "But, you understand the court will order a pre-sentence report and the chances are it'll be with you in prison?"  He said he understood.

In court, low and behold the judge orders the PSR within the punter remanded despite my most eloquent re-iteration of the defendant's promise not to commit any more offences and to turn up next time.  Amusingly, he had told me to ask the judge to give him just one chance to prove himself.  I made clear I wasn't going to do that as retort from the judge would have been, "Mr Defence Brief, if I release him this would be the defendant's 127th chance".

When I see the punter in the cells after the hearing he's furious.  It seems that his real objective was to be released as quickly as possible.  He is no longer interested in getting any help for his drink problem and is angry that I didn't just ask for him to be sentenced to prison today.  As I explained, if he told me he just wanted to be out ASAP then I'd done that - it's actually easier than arguing for a PSR with somebody who's been to prison so many times before for the same thing.

So, the moral of the story is this.  I'm not a doctor who is going to tell you to stop drinking or smoking.  If you want a particular outcome then tell me the truth about what you want and I'll tell you either how to get it or to stop wasting your time because it'll never happen.


I'm there to help, but if you don't tell me what you want then you'll never get what you want.

Friday, 29 June 2012

Injustice coming to a court near you in October 2012

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 receive back a penny of the money that have spent on their case.  Defendants in the magistrates court will only be able to recover costs at the same rate as legal aid payments, which means defendants who are not eligible for legal aid will have to pay a substantial amount of money to defend themselves - to give you an indication, you can expect a magistrates court trial in London to cost you around £1,500, whereas legal aid will pay the solicitor £378.46 in most cases.  It's a bit more complicated that that because firms tend to charge clients fixed fees rather than hourly rates but when you seek a Defendant's Cost Order you have to claim at an hourly rate, for comparison, a fairly typical hourly rate in London will be between £120 - £180 depending on the level of experience you want from your solicitor.  Legal aid will pay £49 per hour in London.

So an innocent defendant who is facing an allegation in the magistrates court can expect to pay a substantial amount to exercise their "right" to have equality of arms with the prosecution, who will be represented at trial by a proper solicitor or barrister.

Just so you know, the Legal Services Commission (LSC) guarantee you funding if your income is less than £12,475 p.a. or if you are on certain benefits.  If your income is between £12,476 and £22,325 then you may or may not get funding depending on a number of factors and in the Crown Court you are likely to have to pay a contribution toward your defence, if your income is over £22,325 then you get nothing in the magistrates court and will have to pay a contribution of up to £900 p/m toward your defence in the Crown Court.

Now, you might assume that the answer is simple, fat cat lawyers could simply reduce their outrageously high prices.  But, when you actually think about what you are buying you start to realise that being a proper solicitor is not cheap: the overheads are very high, the training is very lengthy and the risks to the solicitor are great.  This is why firms charge what seem like very high hourly rates.  Imagine you are having surgery, do you want a surgeon with little experience?  With sparse training?  Of course you don't.  Let's say you are having an extension built on your house, do you want the bloke who shows up with only a vague idea of how he'll do the work or the fella who comes along, looks at the plans and can show you examples of his work that are still standing?  I'm going to guess you want the second one. 

When I first began working we were a bit lax about charging private rates because legal aid paid a reasonable amount of money for a case - although the overall legal aid budget was a fraction of what it now is - and we knew that we could do a decent job for our clients on the fees being paid.  That hasn't been true for a while now and I can no longer put my hand on my heart and say that you will get as good a service if your solicitor is being paid by legal aid as you would if you pay him privately.  It's worth noting that that the Government has made substantial cuts to funding and just recently made a futher cut of 25% to most fees and 100% for cases heard in the magistrates court that go to the Crown Court for trial.  At the start of this year, we had a case that required five magistrate court hearing and for those hearings we got a fee of £0 (yes, zero pounds sterling).

Incidentally, the fact that we can no longer provide a good enough serivce on legal aid is one of the reasons I spoke to my contract manager at the LSC the other day and announced that we would be withdrawing from the contract and no longer providing services to legal aid clients!

Back to Defence Costs Orders.  Is it fair that a completely innocent person is accused of a crime they didn't commit, refused legal aid and then prevented from recovering the fees they had to pay to prove themselves innocent?  Is it fair that a small business accused of, say not paying their rates (as I bizarrely was on a building I do not own or rent a couple of months back) or an environmental offence, etc. should have to fork out to defend themselves?  Incidentally, the cost of defending myself against the false claim I owed rates cost my firm a little over £1,500+VAT, or would have if I hadn't represented the firm myself. 

The argument for bringing about this change in the Crown Court seems to be that legal aid is available (albeit with contributions) therefore all defendants should utilise it.  That argument clearly doesn't hold up in the magistrates court where legal aid is not universally available.  I cannot fathom the reasons for only allowing the innocent to recoup a fraction of the costs they spent defending themselves, other than it being a cynical and underhand ploy to make more people plead guilty on the basis that the fine is less than the cost of defending themselves.

If you are one of the people who read all of that (well done) and are thinking that you don't care because you're not a criminal, not only have you missed the point, but I'd ask you to consider a hypothetical situation you probably can imagine: It's a hot summers day, the bluebelles are in the fields and the sound of willow on leather can be heard across the countryside.  You are driving you car when some fool hits you.  Rather unsportingly, he blames you for the whole thing and his insurance company sues you.  You know you're in the right.  But, instructing a solicitor to defend you isn't possible because you can't claim the money back from his insurance company when you prove yourself innocent.  Is that fair?  No.  That won't happen because this change doesn't effect civil claims, but I hope it makes the point about unfairness... also, what if the police believed him and charged you with dangerous or careless driving?  Then it would apply to you.

Wednesday, 27 June 2012

Legal antenna

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 without some serious judicial arm twisting.  If he doesn't come along then I cannot see how the Crown can prove the conspiracy element as they'll have no direct evidence that the defendants were targetting him - they say there is some circumstantial evidence but I've yet to see it.  As there was no attack and no injury they cannot prove either GBH or attempted GBH.

That's my view having looked at the case summary, which is pretty much all we have at the moment.

Clearly one of us solicitors is right and the other is wrong.  Will be interesting to see the outcome.

Monday, 25 June 2012

Let's all abuse Louise Mensch and Menshn

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 lot of criticisms of Menshn on Twitter.  Many of these involve issues with the coding of the website, perceived security issues and some questions over the privacy policies etc.  It's worth saying that despite hundreds of people claiming to have found huge security vulnerabilities there have been no successful breaches of Menshns' security, according to Louise Mensch on Twitter (slightly ironically).

One thing that did seem consistent yesterday on Twitter was the unnecessary amount of abuse directed at Louise Mensch.  People seemed to be using it as an opportunity to have a go at her on points that I doubt she has any involvement with, such as the coding.  She is not the only founder of Menshn, but she seems to be on the one getting most of the flack and a lot of it in quite unpleasent ways.  I pointed this out in a tweet and one genius replied enquiring whether Louise Mensch was herself poorly coded, thus proving my point.  I must say that the other well known founder is a boy, while Mrs Mensch is a girl.  From what I saw, the boy didn't seem to be getting anywhere near the amount of abuse as did the girl - comments directed at him appeared to be reasonable criticisms, whereas those to her were often personal.  I'm no feminist, but it did strike me as little more than a gang of school playground bullies boys trying to gang up on a girl in the playground... I suspect it may have felt like the attack of the nerds.

A common complaint about Menshn has been that there is no need for Menshn because we already have Twitter.  Okay then, would all the Apple users please shut up about Apple since we already had IBMs before the Mac and smart phones before the iPhone.  Being first to market does not mean that nobody else has a right to join a market with a product that looks very similar to an existing product.  If it did then Mr Dyson should be handing all his cash back to Hoover.  Competition is a good thing because it drives innovation - it's worth remembering that aeroplane technology took massive strides forward during the two World Wars due to the intense competition caused by the wars.

Is it bad that during a serious recession an MP is willing to invest in a new start up and build something that may (or may not) encourage people to discuss and become involved in politics?  I don't think so.

There is one massive plus point about Menshn that all the criticism highlighted: presumably the people who were acting like arseholes on Twitter yesterday won't be there!

Thursday, 21 June 2012

K2 Tax Avoidance Scheme and Jimmy Carr

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 anything other than above board you might have been as surprised as I was to hear our Prime Minister accuse somebody involved in a perfectly legal activity of having loose morals.  Incidentally, I know that Mr Carr has said sorry for his involvement.  Personally, I don't think he has anything to apologise for, but there you are.

Mr Carr is lucky that he is wealthy enough to take advantage of a scheme like K2.  But, let's think of situations where you might decide to structure your tax in the most advantageous way possible.  Do you own a house?  Do you have a will?  Did you tell your solicitor to draft the will without any thought as to the inheritance tax implications?  I bet you didn't.  Are you morally bankrupt? 

Let's imagine a hypothetical and really simple situation where Scotland has the power to control tax on petrol.  The Scottish government reduces tax on petrol to help Scottish business.  Are you morally bankrupt if you live on the English side and cross the board to fill up?  Of course you're not.  Is Jimmy Carr "morally wrong" to chose to structure his tax affairs in such a way that he keeps as much of his own earnings as possible?  Of course he isn't.

Whatever your views on tax avoidance, this outburst is yet another example of double-standards by politicians. 

I wonder whether Call Me Dave would now like to denounce Zac Goldsmith (Conservative MP for Richmond Park) for being morally wrong when he took his £200M inheritance, following his father's death, while a non-dom and keeping the bulk of it in a Cayman Island account?  At the time, Tory HQ said it was "a private matter".

Until he accepted a Peerage in 2000, Lord Ashcroft was a non-dom and paid no UK tax despite contributing £4M to the Conservative Party.  In 2010, Davey C didn't accuse one of his key donors of being morally wrong in the past, he described the issue as "a dead horse" and swept the matter under the carpet.


I know nothing of Mr Carr's political tendencies, but he doesn't strike me as a Tory support unlike Zac and Ashcroft.

Is avoiding tax illegal?  Nope.  Is it wrong to use legal methods to preserve as much of your own cash as possible?  Nope.  Does David Cameron criticise everybody who avoids tax?  Nope.

Tuesday, 19 June 2012

Scots prostitution laws miss the point

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 committing a criminal offence.  Although, if the sex worker has a partner then he may be committing the offence of living off immoral earnings... slightly odd twist.

I understand that Ms Grant wants the new law to help crack down on "serious criminal activity associated with prostitution".  Now let's think about this for a minute.  What are the offences associated with prostitution?  They are things like, human trafficking, drugs, guns and violence.  Let's assume that the new law imposed 12 months imprisonment for offences relating to prostitution... something, which I find extraordinarily unlikely as the sentence is likely to be a fine at most.  Well, the sentences for the serious criminal activities are all much higher than the prostitution so they won't deter the serious criminals.

Will this law deter the girls and women in the sex trade?  I have no doubt that there is at least one woman who got into the sex game through a love of sex.  But, for the other 99.99% it is not so much a choice but a situation in which they find themselves either through a lack of money leading to a decision to whore or, more commonly, a complex interaction with some sort of gang (for want of a better word) that leads to drug use and a spiral into prostitution then ultimately coercion to remain on the game from the pimps and dealers.  Will the woman with no choice be deterred?  Um... I'm going to guess not.


So, we come on to the men who use prostitutes.  Will they be deterred from visiting sex workers?  I suggest that the men who visit prostitutes generally fall into two categories.  First, are single men and second are men in a relationship (either married or long-term).  Now, the second group have everything to lose if they are caught and the police send a letter home to the missus, which they do.  Yet, these men still do it.  If the risk of losing their wife, home and contact with their kids isn't sufficient then the low level punishment dolled out by a court isn't going to deter them.  What of the first group?  Are they lonely or lads out looking for a laugh?  Either way I suspect that few will be put off a trip to the local call girl.

I have made this point several times in previous blog entries and I make it again for the benefit of any politicians reading this.  The answer to societies ills is not the passing of yet more draconian laws.  The answer often lies in using the laws that you already have.  It is already illegal to force somebody into prostitution.  Guns, generally, are illegal.  Dealing drugs is illegal.  These are offences that carry very very heavy sentences.  Dedicate more resources to enforcing the laws you have rather than passing more laws that won't help anybody and which you probably won't enforce anyway.

Here's a thought.  If you want to reduce serious criminal activity associated with prostitution then why not legalise the sex trade?  At a stroke the workers will cease to need to hide underground and fear arrest for earning their living.  Thus they will emerge from the shadows and from the power of the pimps who traffic women for sex and use the income to buy drugs to sell on and who require guns to prevent other dealers stealing their drugs.

Why would a man go to an underground brothel where the girls are likely to have been trafficked if there are legal, clean and licensed facilities available?

On a side note, I had a client accused of kerb crawling a few years ago.  A girl waved him down and asked if he wanted some "business".  He said, "yes, of course" and was then arrested.  The police refused to accept that flagging down a black cab in London, asking if he wanted business and then arresting him was a bit off.  Fortunately, the magistrates were having none of that nonsense and dismissed the case.

Thursday, 14 June 2012

Recommending deportation for foreign criminals

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 exceptionally drunk; and b) he was bothering some women.  In response the chap returned to the club with an imitation firearm and began threatening to kill the doorman and his colleagues.  The fake gun was taken from him by a brave bouncer but the drunk chap then pulled a knife and continued to threaten the doormen until the police arrived.  Last I heard he had been released from prison and remains in the UK.  In another case, a defendant committed a huge fraud against the UK government that allowed thousands of people to enter or remain in the UK illegally.  She has yet to pay any of her confiscation order despite having the funds available in her bank account in her home country.  Again, she remains in the UK with her children who are being educated at British tax payers expense.  This is not somebody from a dangerous country who cannot return for fear of what might happen to her... her family are lawyers and are rather well off.

Now, I don't want anybody to think I've flipped and have joined the BNP, I haven't.  Nor have I suddenly decided to develop a racist bent.  I love immigrants, there's always something great that they bring to the UK whether its a cultural thing, food, beer, a joyful love of life or something else. 

What I do object to is people who view the UK as a soft touch that they can abuse safe in the knowledge that they'll not be sent home no matter what they do. 

I have to say that if you arrive in the UK and set up a family then deliberately set out on a life of crime then it is you who must consider your family's welfare and everybody else should not have to put up with you.  If your family cannot or will not live with you in your home nation then it is you who have broken up the family, not the state or the judge who recommends deportation.

I know you wouldn't want me to end without having a dig at the politicians, so I'll just mention that judges recommend deportation, the person they recommend deportation to is... er Theresa May!

Friday, 8 June 2012

Magistrates make me mad, part 3

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.

Thursday, 7 June 2012

Police to prosecute 50% magistrate court cases

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 evidence, which is handed to the Crown Prosecution Service.  At court a CPS lawyer will stand up and present the case to the magistrates.  It looks as if the Home Office is suggesting that now the CPS lawyers will eventually be replaced by police officers in court.  I'm sure that can't be right since police officers lack the legal knowledge to conduct a trial or manage a sentencing hearing and, I suspect, most of them probably didn't sign up to do those jobs anyway.

The press release is confusing because, on the one hand motoring offences account for about double all the other criminal offences put together, so allowing the police to prosecute them all will give you the 50% figure talked of at the start... although that would make the claim somewhat misleading if you ask me.  The move will begin with uncontested traffic offences (99% of which neither a defendant nor police officer is required to attend - so making the police attend them to prosecute seems counter-productive), the implication being that it will be extended beyond uncontested traffic offences to either contested traffic offences OR non-traffic offences where a guilty plea is anticipated.

In any event, I'm sure that the CPS staff will be pleased to hear them selves described as bureaucrats by Theresa May when she said, "[o]ur model of more power for the police and the public and less for the bureaucrats will free up the finest officers in the world to fight crime."  It's interesting that Theresa May should be so against bureaucrats given that her last job was with the Association of Payment Clearing Services, which is... er... a company dedicated to the bureaucratic elements of processing card payments.  Even more worrying is the contempt in which she appears to hold the lawyers at the Crown Prosecution Service, who are employed to fight for justice in the courts for victims.

If this heralds a swing against jobs in the CPS (recruitment for which has been virtually frozen for years) then expect to see the numbers of convictions swiftly drop in its wake.

Monday, 4 June 2012

Republicanism

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:
  1. Their armies fought to obtain and maintain their position
  2. They have too much power and are unaccountable
  3. They don't serve any function
Now let's have a think about each one in order.

First, I don't remember Liz fighting for her throne.  My understanding is that she is the direct descendent of George I, the first of the Hanoverian monarchs.  While Georgie undoubtedly fought wars to expand his territory in his home land, he did not fight to become King here.  He simply inherited the title on the death of Queen Anne.

Even if HMQ's ancient family were involved in wars to obtain the throne I don't see how that is an argument for abolishing the modern Royal family.  Take that to its extremes and we'll be giving England to the Welsh (who seem to me to be the original Britons before the Saxons, Normans, etc).

Point two is actually a far more powerful arguments and by happy co-incidence almost completely contradicts point three, which is always nice.

Heisenberg's uncertainty principle tells us that we can know the position of a particle or the speed of a particle but you cannot know both with any certainty (sorry hope the sudden change of tack didn't make you seasick).  HMQ's powers are analogous to the uncertainty principle in that we know what the powers are and we know what will happen if they are exercised in the way we expect, but we cannot be certain what would happen if Liz got drunk and tried to use her powers contrary to the will of the elected Government.  If that is correct then Liz both has power and yet has no power.

Let us say that Call Me Dave and his pet Liberal decided to force through an Act of Parliament that abolishes the monarchy.  HM Liz II feels a little hard done by and so when the Bill is presented for Royal Assent she refuses to sign.  What happens next?  There is no precedent that I am aware of for how to proceed.  I suspect; however, that Parliament would suddenly remember that it is supreme and that all is required for a law to be good is for Parliament to say so.  Will the Queen and the Royal family be abolished?  Yes.  So, what happens if the Queen refuses to use her power in the way directed by the Government?  It ceases to exist.  The alternative would be unacceptable to anybody, it would be a return to autocracy and no elected Parliament would allow that to happen.

There is a grey area where the Act of Parliament is less important, say Dave and Nick forced through an Act of Parliament ordering the destruction of all cute kittens and HMQ refused to sign, what then?  In principle the situation is no different, the elected Parliament can either accept a loss of face and almost certain electoral defeat at the next election or they can reform the way in which a Bill becomes and Act.

So, it seems to me that while Liz does appear to have very important and serious powers, those powers are in reality a smoke screen.  They are like a judge who presides of a murder trial and completely believes the defendant to be innocent.  But, the defendant is convicted by the jury.  The trial judge could stand up and walk out of court refusing to do his duty, but in reality unless he wants a swift end to his judicial career (and possibly a criminal conviction for misconduct in judicial office) he has no choice but to impose a life sentence on the man he thinks to be innocent!

Now, let us turn to our final object that the Royals serve no function.  Given what I've already said you might expect me to accept this point.  I don't, obviously, else where would be the fun in writing about it?

The Royal family serve a couple of important functions.  They have a minor impact on tourism.  I say minor because if we exiled them all to Elba tomorrow morning we'd still have all the Royal palaces etc that people really come to see.

I am told that they do serve a very important diplomatic function and that a visit by a member of the Royal family is used as part of the UK's overall diplomatic efforts across the globe.  One thing that is worth saying is that the Foreign Office has a lot of options at its disposal and if they didn't think the Royals did a good job here then they'd stop sending them.  It is a sign of how important the Royals are thought of abroad that the Taliban showed some interest in capturing Prince Harry in Afghanistan... I mean who here would want to capture him??  Put simply, foreigners seem to love our Royal family.  Their governments love to rub shoulders with Royalty to show their domestic audiences how important they are.

What would happen if we abolished the Royals?  For a start we'd have an embarrassing little situation with the money.  Do we put Liz and Phil up in a two-bed semi in Romford and continue using money with her mug on it?  Are we going to print a whole new range of coins and notes?  Maybe we should join the Euro.  Don't even get me started on the stamps.

Who would replace Liz?  As I see it there are two options.  Either a presidential figure or nobody and we just get on sans figure head.  The president would no doubt be yet another politician who has never had a proper job and is completely out of touch with the lives of ordinary people.  At least Liz spent some time working as a mechanic and driver in the Auxiliary Territorial Service during the Second World War.  What was Call Me Dave's last proper job?

That's my opinion anyway feel free to disagree... I'll probably change my mind in a week or two any way.

Friday, 18 May 2012

Magistrates make me mad part 2

A few months ago I wrote about an encounter I had with a lay magistrate.

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.

Thursday, 17 May 2012

Why won't they charge?

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.

Tuesday, 15 May 2012

Policing the roads - Bike Safe

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 tips on improving their riding ability.

The officer I spent the day with made some interesting points about how they police the roads.  In particular, he emphasised that if you want to go speeding around the back roads where the national speed limit applies then they police won't be very interested, although if it goes wrong you'll end up in a pond or in a tree.  But, they pay particularly close attention to speeding in the 30 and 40 limits - generally anywhere you might come into conflict with more vulnerable road users.

Wednesday, 9 May 2012

The future of the Bar & drug driving

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 in the abstract, in other words, you never hear any concreate examples that we can all go and look at the transcripts to see for ourselves.  All you get is, well this might happen.  It is scaremongering and nothing more.  If I claimed that barristers might accept cases that were beyond their abilities to handle just to line their own pockets then I'm pretty sure a whole slew of barristers would line up to tell me it wouldn't or couldn't happen because of this or that.

The attitude of these barristers (who are by no means the majority, but are very vocal) is not surprising.  When I was at Bar School we were encouraged to be rather arrogant towards solicitors.  Solicitors were referred to as the "junior profession" and the Bar students had special areas set aside just for us.  We had a whole suite of teaching rooms and computer rooms where only the Bar were allowed and any solicitors sneaking in would be asked to leave.  There was even a separate library that had a lock on it to prevent any one not on the Bar course from gaining entry! 

These in fights among lawyers really get me down.  Because while we spend all this time arguing among ourselves about whether solicitors are incompetent advocates or whether the Bar is the cream of the advocates we are allowing Government to get away with ruining both our professions.  It is my firm view that the sooner the professions are fused the sooner we can get back to doing out best for our clients both in the court room and outside it in campaigning against Governments intent on removing the rights of our clients.

On a completely different point, I hear that the Queen's Speech will today propose outlawing driving under the influence of drugs.  I have no idea why since I notice that section 4 of the Road Traffic Act 1988 is entitled "Driving, or being in charge, when under influence of drink or drugs."  Would seem this "new" law has already been on the statute books for 24 years.

Tuesday, 8 May 2012

Go through with your threats

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 asked how that could possibly be relevant since the missed appointments were long before the hospitalisation.  He tried to avoid the point by constantly talking about irrelevant things and claiming that he didn't understand etc etc.  It's worth noting that during the period he'd been unable to comply he'd managed to continue running his own business without a problem, so there's a limit to how far I can believe that all the problems he talked about really prevented him attending a one hour meeting.  The man refused to engage with me and ultimately there was nothing I could do to help him.

Back in court, the judge seemed to have forgotten all about what she had said before and released the defendant for a third probation appointment.

What happened to the threat of immediate imprisonment unless he explained himself?  I do think that defendants and toddlers have some similarities in that if a judge or a parent threatens a consequence if their orders are not obeyed then they should be ready to go through with their threat or risk losing the power of their threat.  If defendants know that they can openly disobey court orders with impunity then why would anybody bother complying?

Saturday, 5 May 2012

Meet your strawman


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 interesting views by following this link.