The Defence Brief

MacShane behind bars Former MP and Government Minister, Denis MacShane has today been sentenced to six-months imprisonment for fraudulently claiming £13,000 in MPs expenses to which he was not entitled. This sort of thing really gets on my nerves. Mr MacShane will no doubt have been sentenced in accordance with the guidance for fraud committed by professionals.  The leading case is R. v Chaytor [2011] 2 Cr.App.R.(S.) 114 who you may not be surprised to hear was an MP who made up expense claims.  He received an 18-month prison sentence for stealing £50,000 from the taxpayer following a guilty plea. These cases annoy me when we compare them to the sentences handed out to benefit fraudsters.  The leading case on benefit fraud is R. v Graham , R. v Whatley [2005] 1 Cr.App.R.(S.) 115 which considered two unconnected offenders together.  The facts are not terribly important save that Graham's fraud was false from the start where as Whatley initially made a g...

I remember reading about a once famous television soap-opera actor who played an unpleasant character in his show.   He complained that people couldn’t disassociate the actor from his character and little old ladies would routinely harangue him for his character’s antics. In a modified form I suffer the same problem with people who cannot disassociate the television portrayal of the courts, lawyers and legal process from the reality.   This belief that the TV accurately portrays the Criminal Justice System gives people completely unrealistic expectations of what can reasonably be done for them. One chap telephoned me recently sounding like he had just stepped out of da hood.   After providing no more information than that he had been charged with drink driving he demanded to know “how we gonna beat this thing?”   I assume he’s seen lawyers on TV fabricating defences for clients, although there are some lawyers in this country who do just that! Another...

I went to visit some primary schools in Oxfordshire earlier this week.  My primary school was very different to those I visited this week.  My school was an old Victoria building where the youngest children joined the school on the ground floor and the older you got the higher your progressed up the building.  Each floor had separate classrooms and its own large assembly hall.  In contrast the schools in Oxfordshire were all largely open plan with two or even three classes in one (large) room.  Also noticeable was the small size of the school halls and the number of them.  As I say, my primary school had four assembly halls, three of which were large enough to fit the whole school for the dreaded whole-school assembly.  This was a useful feature as the first floor assembly hall was used daily by the whole school as the lunch hall. Noticing that the schools had just one small assembly hall each we posed the question, "where do the children luncheon?" ...

I spoke to a chap today who has been accused of a drink driving offence.  He denies it, but that's not really important because this post isn't about him or his case. Like many people I meet dealing with drink driving offences at The London Drink Driving Solicitor this chap faces losing his driving licence and with it his job and so not being able to afford his mortgage.  Understandably, he's very worried about feeding his family if he loses his job and cannot pay the bills. Now, many people take the attitude that he has brought the punishment on himself and I can understand why people would take this view.  But, is taking people out of work and making them and their families reliant on the state for their accommodation and food really the best way for us to deal with this offence? It's just a suggestion, but why not change the drink driving law so that it no longer carries an obligatory driving ban but instead has a sentencing guideline that starts with everybod...

There maybe a border control or customs officer reading this blog, who knows.  I have to ask, why are UK borders and customs officers always so bloody miserable? I went to France last weekend - FRANCE reputed to be the rudest country in Europe by some - and yet the customs officer bade my family and I a happy "bon jour" and cheerfully wished us a pleasant stay in his country.  I've been to France a few times and mostly they are always reasonably cheerful. I was in Germany a year or so back and despite my stupidly buying a novel to take with a big swastika on the cover the border man was pleasant, albeit a little surprised. I've visited Slovenia, Austria, Slovakia, Latvia, Estonia, Spain and Poland where everybody we met was pleasant. In the USA even the stern border control officer managed a smile when he realised I wasn't a terrorist merely English. Yet no matter how many times I go away I always have to come back and every time I do I'm met with a ...

Drunk tank When I heard on the radio yesterday that Adrian Lee (who he? - he a member of the Association of Chief Police Officers) had called for drunk tanks to be established in rowdy city centres I initially wondered where they would find all these tanks for drunks to drive and whether that would be such a good idea anyway. In the event, I realised that Mr Lee had only a slightly worse idea. What this chap actually wants is slightly unclear if I'm honest.  Sounds simple at first: cells are not the place for drunks so we'll set up some cells to put drunks in and then charge them for the stay.  But when you think for a minute what he's actually proposing is slightly harder to implement. Mr Lee said, " I do not see why the police service or the health service should pick up the duty of care for someone who has chosen to go out and get so drunk that they cannot look after themselves."  My answer to that is, "well because that is one of the reasons t...

I have occasionally ranted about MP’s in this blog and today will be no different. Houses of Parliament - where the lizards live A part of me thinks that anybody who actively wishes to enter politics should be excluded from entering politics, although I also appreciate that this is probably unlikely to happen. One of my big problems with politics is the lack of real-world experience enjoyed by many MP’s these days whose career seems to involve a politics degree, followed by a few years as a researcher for an MP or working at party HQ followed by standing for election themselves.  These people have absolutely no idea how their policies work in the real, everyday world that the rest of us inhabit. I’m sure that most of them aren’t the evil world-domination lizard types dressed in human skin that they often appear to be… although I am sure some are actual lizards in human skin.  I’m sure some go  into politics because they want to better the world and help p...

Miscarriages of justice aren’t always big news involving somebody spending years in prison for a crime they didn’t commit. Often they are the minor cases that nobody but the people involved care about. I'll let you into a secret... there's almost certainly a good few miscarriages of justice every single day in the English courts.  They are usually for relatively "minor" offences and happen to people who either don't care because of they have drink, drug or psychiatric problems.  The other big group are those who cannot afford to fight - the justice lacuna. Most solicitors will have come across the defendant who pleads guilty while maintaining their innocence.  The reasons for pleading guilty are as diverse as the people who make “false” guilty pleas.  I’ve seen everyone from drug-addicts clucking so badly that all they can think about is getting out of the cells to get another hit and very highly educated professionals pleading guilty simply because t...

The concept of joint enterprise has been something of a controversy over the past few years with people arguing that convicted murders should not stand convicted because they were not at the murder scene etc. I was recently followed on Twitter by the Justice for Wesley campaign , which argues that Wesley Porter was wrongly convicted for his part in a gangland murder.  According to the Liverpool Echo newspaper, Porter was alleged by the prosecution to have supplied the murder weapon to the killer and was thus convicted under the joint enterprise law. Jonathan Herring in his Criminal Law textbook succinctly defines joint enterprise as arising “where two or more people together embark on the commission of a criminal offence.  The two parties may expressly agree to commit a particular crime, or this may be an unspoken agreement.”  There is no requirement for all of the parties to a joint enterprise to know one another but it is important that they are working toward...

I've spent the last 24-hours at several police stations dealing with several clients.  All but one of these attendances was conducted civilly by me, police and detainee alike.  The only exception was this morning at West Drayton Police Station. I was a little suspicious when a uniformed constable giving disclosure consistently claimed not to know the answers to my (fairly basic) questions, all of which could be expected to be answered in the arresting officers' note - in fact the arresting officers were the only witnesses in this case.  A lack of knowledge usually means either that a PC hasn't prepared properly or is trying to hide information from you.  A lack of preparation is rare since it is hard to question somebody about an offence if you don't know the basic facts of that allegation.  Experienced officers who want to hide information will simply refuse to disclose key-facts.  This is done in a planned way to withhold facts that can be used to test ...

One of the basic principles of the English & Welsh Criminal Justice System is that it is an adversarial process.   People like to think that this is somehow different to the rest of Europe but that isn’t true.   They do have slightly different system but when somebody says “I am not guilty” then they pretty much all adopt an adversarial process that we would recognise.   Anyway, aside about Europe over. Royal Courts of Justice Because the system is adversarial it is for the prosecution to prove the allegation they make against the defendant so that the jury or magistrates are sure that the defendant is guilty.   This requires the prosecution to produce evidence of the defendant’s guilty that the defendant can either accept or challenge. When a defendant pleads guilty he or she is accepting the prosecution case against him in its entirety, unless he puts forward a basis of plea setting out that he is guilty but on different facts to those alleged ...

A while ago I wrote about Claire's Law (opens in new window), which allows a woman (in the majority of cases I suspect) to enquire of the police about their partners criminal record if the woman or others have concerns about the new boyfriend. In reply, Anonymous wrote this: "Abusers can convince you that it was a one off and blame it on the alcohol. They might even put friends and family reassure you that it was out of character. People do not take DV as seriously as they supposed to. That new law can be a life savior. I don't agree that someone has to go through the police to check it. I think it should be public record. "  First, I agree about the manipulation he or she mentions.  It can be quite astounding what some of these people can make others believe.  Many years ago I was junior counsel in a trial where the defendant had convinced ALL of the parents on his street to allow him to take "modelling" photographs of their teenage daughters.  Ne...

I’ve not been very active lately as I had surgery a few weeks ago and haven’t been able to do much.  Even now, I’m staying in a hotel (Premier Inn, because criminal law is very glamorous) by the court because I’m not ready to travel all the way to court two-days running.  I’ve been writing a lot of blog posts but haven’t posted any for the simple reason that they are pretty crap – even worse than my usual outpourings.  The injury also appears to have damaged my memory.  I've just looked at the last post, which is utter rubbish and one that I have absolutely no memory of putting on this blog! Anyway, today I was back in court for the first time in a month or so.  I met a prosecutor who’s ability to lose papers is simply outstanding – better than me and I’ve managed to misplace large stacks of paperwork in under 10-seconds!  This chap gave me my copy of the papers and then promptly lost his own set.  I let him read mine to open the facts then took t...