Friday, 22 February 2013

Drugs policy

I am rapidly coming to the conclusion that it is time for the UK for re-evaluate its drug policy and overhaul drug offences.

Whether you like it or not the police are losing the battle against drugs such as cannabis, which is smoked openly on the streets.  I live in a reasonably well to do part of London.  Earlier this week I left my house and bumped into a man leaving a house around the corner.  I don't know him or anything about him other than he is white, around my age and smokes cannabis.  I know the latter because I saw and smelt him doing it.

Jump on a motorbike and ride around town - any part it doesn't matter - and you will smell cannabis being smoked in at least one car every traffic jam.  By traffic jam I pretty much mean any line of cars more than 100 yards long.  I've noticed this to be true across the capital.

When I act as custody court duty solicitor I can be guaranteed that if I actually get a punter there will be drugs involved somewhere.  Either they are an addict arrested for a drug offence or for stealing to obtain funds for drugs.  Or, they are a recovering drug addict who has become hooked on some other substance, usually alcohol - this is very common - and who is now committing crimes associated with alcohol.

In 1996, 5.5% of the 16-59 year old population reported using cannabis in the month prior to being questioned.  In 2012 that figure was 4.1%.  In the same period among the same population the numbers using cocaine in both powder and crack form have increased significantly from 0.3% for powder and 0.2% for crack to 1% of the population for each. Ecstasy in 1996 was used by 0.7% and in 2012 by 0.5%.  Heroin has remained stable at 0.1% both in 1996 and today.  The same is true for most other drugs.  You can download a copy of the figures from here.

I cannot find any reliable information about how much the police spend detecting drugs crime in the UK, but I imagine it is quite a bit.

We saw from prohibition on alcohol in the USA that banning something that is in demand leads to criminal gangs moving into the market.  That is exactly what has happened in the UK (and across the world) with illegal narcotics.  The police have been unable to make any significant dent on the drug use in the past 16 years since we have been keeping records and the fact is that this is not surprising.

Drug abuse, like alcohol abuse, is not really a criminal problem.  It is a healthcare one.  The police can arrest somebody for using drugs and lock them up for a night, a week, a month or a year.  But, if they do not address the underlying healthcare problem that is the addiction then the police will be arresting and locking up the addict again very soon.

Don't get confused by offences associated with drink and drug use, such as shoplifting.  Alcoholics commit these offences as much as drug addicts in my experience.  The police are the right people to be dealing with those offences.  But, the question is what should the police do once they have arrested a drug user or alcoholic?  In the UK, there really isn't the resources or the motivation from society as a whole to rehabilitated these people back into normal life.  We prefer to moan about the junkies, the losers, the alky sponging off the state or being criminals.  We scoff at the do-gooders who talk about rehabilitation.  What are we really saying when we talk like that?  We are saying that the addict is unworthy of our attention and that rehabilitation is just a soft option that never works.

In a sense, it is correct to say that rehab never works.  Usually, this is because it is hard to get somebody onto rehab until they have shown a willingness to address their drug use themselves - ironically it's often easier to get a DRR for somebody who says they've stopped using than for somebody who is still using!  This is fine, but after spending a restless night in the cells, clucking, the addict is rarely feeling motivated to do anything let along address their drug problems.  In prison there seems to be little or no help for these people.

I suggest that to resolve the problem two things need to happen.  First, the drug laws need to be overhauled with a view to liberalisation.  This will allow governments to regulate supply and drive criminal gangs from the market.  It will also help to change attitudes among users who frequently see the police as there to arrest them (because they are) and will assist them reintegrating, because at present the drug addicts whole life is basically one long criminal offence. 

Secondly, the government needs to beef up the rehabilitation services available to people both in the community and in prison.  Ironically, I've never known anybody to steal to buy a cigarette yet the NHS spends a fortune getting people to give up.  You can go to your GP and they will refer you to a group who will help you or a myriad of other options.  Go to your GP saying you have a drug problem and you'll be lucky if you see a drugs counsellor before your resolve weakens.

As a nation, we must decide whether we want to continue with this never-ending and seemingly unwinnable war on drugs or whether we want to take positive action to eliminate drug abuse in the future.

Wednesday, 20 February 2013

Anonymity for rape defendants

John Worboys - the Black Cab Rapist

Maura McGowan QC is the chairwoman of the Bar Council and she has recently suggested that men accused of rape should receive anonymity.

While we talk of men being convicted of rape it's worth noting that women can be convicted of it as well and it happens once in a blue-moon.  Only a man can be the principle offender, but a woman can be guilty of rape through joint enterprise or in a more limited way by aiding, abetting, counselling or procuring the offence.

While we talk of women being the victims of rape, men can also be raped.  As can children of both sexes.  The rape of an adult man is relatively rare.  I don't have figures for the numbers of male/female children raped each year but when I used to defend those offences the numbers I come across were roughly even.

Why are rape victims given anonymity?

Rape occupies a unique position in our law whereby the complainant is automatically granted anonymity for life and that anonymity can only be lifted by order of a court.  Typically it is lifted at the request of the victim but on rare occasions it is lifted because the allegation has been found to be false and the complainant convicted of perverting the course of justice.  It is not lifted simply because the defendant is acquitted.

When I was about 14 two fully grown adult men tried to rob me.  Last year somebody managed to steal my iPhone.  Both events were annoying but ultimately neither troubled me.  Rape; however, is a very traumatic experience.  Victims should not feel ashamed or that what happened was their fault, but I understand both feelings are common.  This makes it less likely that the victim of a rape will come forward. 

Guaranteeing anonymity helps reassure victims that they can come forward and tell the police what happened to them without finding their name or photograph appearing in the press.  The defence will be aware of the complainant's name so no unfairness is caused to the defence in preparing their case for trial.  So, there really is no downside to granting victims anonymity.

Anonymity for the defendant

Ever since I first studied law when I was 16 I have felt that all defendants should be granted anonymity until they have been convicted.  If a person is innocent until proven guilty then this makes sense.

In sexual offence cases there is a much stronger reason for anonymity than in cases involving other offences.  Those wrongly accused often report that the stigma caused by the allegation simply never goes away.  It infects not only the innocent defendant but also their family and close friends.  Many reports detail being shunned by friends, family and employers.  They frequently move home to escape the problems caused by the accusation even after they have been found not guilty.  I seriously doubt that this happens to even those who are actually guilty of other offences, like theft.  Antony Worrall Thompson actually went on TV several times to talk about his pilfering ways.

There are a whole host of reasons given against the granting of anonymity for defendants in rape cases.  A recent piece in the Guardian gave these reasons:
  1. Publication in the press traps serial rapists by making other victims more likely to come forward;
  2. Rape is stigmatising for the victim;
  3. Defence barristers routinely scrutinise the complainants sex and personal life; and
  4. Being accused of rape is no worse than being accused of murder or terrorism.
I will deal with each of these in turn if I may. First, it does not appear to be the case that publication makes genuine complaints more likely.  John Leslie was accused by Matthew Wright of raping Ulrika Jonnson, a claim she refused to confirm or deny.  Within months he had been accused by over 30 women of the same offence.  The vast majority never went to the police but went direct to the press.  The police and prosecution were unable to find sufficient evidence to put Leslie on trial for any offence whatsoever!  Compare that to the the Jimmy Savile case; lots of people came forward after his death but the real problem appears to have been complaints made to the police and authorities not being properly investigated or taken seriously.  In the John Worboys case the problem was again a botched police investigation.  In any event, it is very easy to draft a law that grants anonymity but allows a judge or magistrate to lift that anonymity in situations where the police say it is necessary.  The argument that anonymity prevents further victims being found really has no legs.

The fact that rape is stigmatising on the victim really has nothing to do with whether the defendant should also receive anonymity.  It is stigmatising to be accused of sexual offences so if anything this claim strengthens the need for defendants to receive anonymity.

Apart from not being true that barristers in rape cases have free reign to tarnish a complainants character it's also worth mentioning that this objection has nothing to do with whether a defendant should receive anonymity.  While I am on the subject though, I do find it very worrying that the Guardian's report say "'belief in consent' is a permissible defence" in a way that suggests merely believing that the other person consented should never be a defence to sexual offences.  For those who don't know, it is only the lack of consent that renders the sexual act a criminal offence.  If the defendant were to be deprived of the right to say, "I thought she consented" that is tantamount to saying that an allegation is equivalent to guilt because there is no defence left (apart from, "it didn't happen") to the defendant.

Finally, I do take issue with the claim that an accusation of rape is no worse than an accusation of murder or terrorism.  There is something particularly nasty about sexual offenders, not just in reality but also in the minds of people.  To be honest, if a friend of mine got into a drunken fight and murdered somebody I had never met then I think that our friendship would probably be more or less unaffected by the conviction.  If the same friend got drunk and raped a woman I had never met then I think it would have a big impact on our relationship.  In any event, I would suggest that this strengthens my earlier point that I am in favour of anonymity for all defendants not just those accused of sexual offences.

In conclusion, I would quite like to see anonymity for all defendants.  However, I do think that those accused of sexual offences should be given this protection even if other defendants are not.  After conviction there should be nothing to prevent the press reporting, naming and shaming those who have been found guilty.

Tuesday, 12 February 2013

Courts are a farce

Today I spent the morning in disbelief as I watched the goings on in a trial court at a magistrates' court.  If a TV show portrayed proceedings as they actually happened nobody would believe it.  They'd say it was a caricature of the system, deliberately made worse to make a point about inefficiencies.  But, it's not.

At 10am I sat in court as the bench walked in.  Unfortunately, no prosecutor was in court, he had been in but had left.  A list caller went to fetch him.  She returned saying she had seen the prosecutor but he did not pass on a message and he wasn't with her.  The court waited.  The list caller was dispatched again.  She returned still prosecutor-less - personally I had an image of him sitting in his room telling her to "f**k off".  All I can say is I had to twist his arm to get him to bother to read my two one-page witness statements.  A tannoy announcement was made by the clerk ordering the prosecutor to attend.  Nothing.  For a third time the list caller was dispatched.  She returned and a minute later a completely unashamed prosecutor showed up making a very half-hearted apology.  I must be fair to the CPS and say that this chap was not a CPS employee but an independent barrister instructed to prosecute the trials in that court that day.  Frankly, I doubt he would dare to try that nonsense in front of a DJ or a Crown Court judge.

Things went wrong for me when I found out my 20 to 30-minute case was listed behind a 4-hour trial and then a 2-3-hour trial, plus a committal hearing and a pre-trial review.  First let's remember that this is the morning list and that the morning sitting begins at 10am and ends at 1pm, so how they expect to squeeze about 8-hours of hearings into that time I do not know.

Fortunately, the CPS had failed to get any papers together for the PTR so that quickly went out the window.

Next the 4-hour trial.  There were obvious problems with this case that I couldn't help but notice, all of which stemmed from the CPS's failure to serve their case on the defence.  Much to my annoyance, the CPS tried to claim that they "might" have served the papers but weren't sure.  They pointed to the fact that there was a letter on their file enclosing the papers.  The fact that the letter had the defendant's name but no address didn't seem unduly problematic to anybody except the defence (and me), who were represented by a very young pupil who seemed somewhat nervous.

The lack of papers caused particular problems as a witness helpful to the defence had been tendered; this means that the Crown do not intend to call the witness but pass on that person's details and statement so that the defence can call them if they want to.  Because the CPS had failed to serve any papers, the defence did not know the witness had been tendered and this helpful witness was not at court.  Because nobody had thought to ask him or her for their telephone number they were un-contactable.  The court, in its wisdom, chose to dispatch the DC in charge of the case to the witnesses home to see if they could pop along to court.  The DC didn't have a car so had to take the bus on the 30 minute trip to the witnesses address, despite knowing that the witness works full time and so probably wouldn't be there anyway.  While on the trip he was also to organise the printing and service of various missing prosecution papers that the defence didn't have.  He had to do this on the bus since a) the court had sent him on a fools errand; and b) the computer equipment in the court wasn't working so he was calling other officers at the police station.  There were now two detectives tied up with this nonsense.

The thing that really annoys me in courts and that makes them look particularly farcical is this need to appear to deal with everybody even-handedly even when a problem is blindingly obviously only one party's fault.  I suspect that this is the reason why the defence are always heavily criticised when the prosecution don't bother to do their job.  This particular firm of solicitors had written to the CPS twice and informed the court of the lack of disclosure back at the start of January.  Having spoken to one of the clerks in court, it appears that the address lawyers are told to send their correspondence is in fact an administration address and often important case progression letters are not passed on to court clerks.  Despite having prompted the CPS twice and informed the court, the defence came in for as much flack as the CPS for the Crown's failure to comply with their legal obligations.  This is frequently the case.

Next up was the minor problem that the complainant wanted to give evidence behind a screen but that the prosecution hadn't bothered to make an application.  As I said in my last post, the good thing about screens is that they help honest witnesses who might otherwise be intimidated.  The bad thing is that they help dishonest witnesses who might otherwise struggle to lie about somebody to their face.  Because of this risk, special measures applications must be made in writing within a set time frame.  However, because everybody forgets about the negative side of special measures and only ever thinks about the positives courts routinely grant special measures out of time, without a proper application being made and without giving any consideration to the relative merits of the special measure sought in the particular case.  In fact, the court clerk made clear to the defence barrister, when she shyly suggested that a proper application might be nice, that in fact courts were always minded to grant these applications no matter what!

On the subject of special measures, try asking a court for a screen to protect a vulnerable defendant from the gaze of the public gallery or his accuser as he sits in the dock for days waiting to give his evidence.  Try asking for special measures when the defendant actually gives evidence.  Good luck.

On an unrelated point, I don't know the defence advocate or which Chambers she is from, but she did seem to be out of her depth on this trial.  As costs are cut back you will find that senior lawyers spend less and less time training and developing the skills of junior lawyers.  This causes both delay and injustice.

The court system is rapidly descending into farce.  There will always be problems with when big organisations talk to one another and try to work together with smaller organisations and individuals.  But, the truth is that the last Government and the current bunch cut back on the Criminal Justice System in the good times and they are cutting back even harder in the bad times (everything is being cut except IT... why is it Government's love expensive computers so much?)  To save money administration is remote from courts, which means communication is often difficult if not impossible.  The CPS seem to be forever centralising, de-centralising, moving out of police stations, moving back into police stations.  I don't think any of the CPS offices I dealt with when I first began practice exist any more.  This means that defence lawyers never know where to contact prosecutors and, I suspect, prosecutors never know where any of their papers are.  All of this is a recipe for minor short-term savings in exchange for long-term cost rises as cases are delayed, put back and ultimately appealed.

Monday, 11 February 2013

The Future of Rape Trials

There has been a lot of media attention recently about how rape trials are conducted following the suicide of Frances Andrade who took her own life after giving evidence against the man she claimed raped her as a teenager.

Many people have suggested that it is time to stop nasty lawyers deliberately upsetting victims of rape when cross-examining them.  These comments have come from such esteemed sources as the Crime Editor for the Times newspaper, somebody who really should know better.

Since I began practising law, things have got much easier for the prosecution in all types of criminal case.  When I started out we were filled with maxims such as, "It is better that ten guilty men go free than one innocent man is convicted".  When I started out the presumption that you were innocent until proven guilty was still firmly enshrined.  However, that has changed little by little.  First, despite being presumed innocent, the accused was banned from cross-examining the complainant in sex cases.  This seems fair, if he did do it then he shouldn't be allowed to harass his victim.  There are also special measures available in any type of case that allow complainants to be screened off from the defendant either by a physical screen or by giving evidence via video link so they are not even in the same room as the person they are accusing.  Again, this is good for victims as it helps them give their evidence better; but it also makes it easier for a lying witness to avoid confronting the person they are attempting to falsely accuse!  And yes, that does happen in all types of case.  I don't know if it is more or less common in one type of offence than another but I doubt there are any criminal lawyers in practise who have not come across a lying witness, either their own or their opponents!

The most recent calls for change are the most worrying I have ever heard.  People are essentially saying that defendants should not even be allowed to challenge their accusers through a professional lawyer.  Many suggest that we should adopt a "continental approach" and drop the adversarial process.  This ignores the fact that even in France criminal trials are adversarial!  The Inquisitorial system whereby judges gather evidence etc is more akin to our (very) old-style committal proceedings where magistrates did operate an inquisitorial procedure as examining magistrates.  But, even in France when a judge in the Inquisitorial system finds sufficient evidence to charge a defendant the case is sent for trial by judges and jury in a system that any English criminal lawyer would recognise.

Why do we use this system?  Because, only through challenging a witness can you test their evidence, assess the reliability of their account and judge their honesty.  This is because sometimes their evidence may be completely honest and accurate from their point of view but it may not stand up to scrutiny because they made a mistake.  Sometimes the witness may be actively lying.  Sometimes they may have been forced to give evidence in court.  We just don't know... until and unless we test the evidence!

If somebody shows me a system that can work without the adversarial element then I would happily say we should change our system.  But, I have yet to find such a system despite looking.

Wednesday, 6 February 2013


Generally speaking a court will sentence according to the guidelines laid out by the Sentencing Guidelines Council or according to the precedent established in previously decided cases in senior courts.  There is a good reason for this.  If you allow courts to do as they please you find that sentences vary wildly.  This is not in anybodies interests as it leads to injustice for the defendant in one are and injustice for the victim in another.  Guidelines ensure consistency in sentencing across the country.

There are a number of these guidelines with which I disagree completely.  They are often either too lenient or far too harsh for the offence in question.

Last Saturday I was court duty solicitor for the West London area.  Due to court reforms we were sitting in Westminster Magistrates' Court.  The same court was hearing its own local cases and cases from the City of London.  Due to the confusion caused by jumbling so many areas up into one courtroom I ended up representing somebody from a the City of London's jurisdiction.  Since I am not a duty solicitor in that area (and when I briefly was I never got a case to deal with) I was completely unaware until Saturday that the City of London has introduced its own sentencing guidelines, which in the case of pickpocketing are much more severe than the nationwide ones.

The national guidelines for theft from person show a starting sentence for a first time offender of a community order for the lowest level offence.  However, in the City the starting point for the same offence is 18 weeks imprisonment!  My client pleaded guilty and got 12 weeks imprisonment for his first offence.  Anywhere else and, no matter what the guidelines say, I would have expected a fine.

I am all for people being rehabilitated in the community, but I am constantly amazed just how difficult it is to get sent to prison for offences of theft and violence, even when you have previous convictions.

In fact, for common assault there are three categories of offence set out in the guidelines and common assault carries a maximum sentence of 6 months imprisonment.  Yet, even for the most serious common assault the starting point for sentencing a first time offender is a community sentence.  That highest level includes situations where the victim suffers an injury!

Some sentences are getting so silly now that I wouldn't be surprised if Chris Huhne avoided prison for conspiring with his ex-wife to pervert the course of justice.

Monday, 4 February 2013

Injustice is here

Last year I talked about the coming changes to Defence Costs Orders, which are the Orders made by courts that allow an innocent defendant to claim the cost of his defence back from the authorities who wrongly accused him or her.  These changes are now in force.

At the start of this year I was contacted by a defendant via the London Drink Driving Solicitor website.  He had been accused of failing to provide a specimen of breath for analysis but said he was not guilty because he suffers from severe asthma and was physically unable to provide the breath specimen.

I explained the costs and the new Defence Costs Order system, which means that even if acquitted he might not get back all of the money he pays out to defend himself.

Last week he told me that he had decided he could not see the point of fighting and winning only to have to pay out as much as the fine would be if he pleaded guilty.  For him, he couldn't afford the risk of winning and losing his money as well as lost income from time off work for the trial etc. 

He made a financial decision to cut his losses and plead guilty to an offence he said he was innocent of committing.

The overriding objective of the Criminal Procedure Rules and thus the court and everybody involved in the Criminal Justice System includes, "acquitting the innocent and convicting the guilty".  That's the top, number 1 point made in the CrPR.  It is important.  Nowhere that I can find does it say that people should be forced to make financial decisions about whether they falsely admit to being a criminal in order to avoid potentially harsher financial consequences of being found not guilty!

Word verification

I'm sorry about this, but the blog has been inundated with comments trying to advertise other websites since the start of 2013.  I have therefore been forced to bring in the very annoying and tedious word verification facility on all comments and to only allow moderated comments on older posts.

This is the first time I've done this in the 2 or 3 years this blog has been going, but blog-spam is now at a point where it has to be done.  So sorry again.