Friday, 26 April 2013

Claire's Law

For those who haven't heard of it, Claire's Law is the popular name for a modern law that allows police to tell potential victims of domestic violence about their partner's previous convictions.

I do not understand the purpose of this law.  I get that it is supposed to forewarn women who might be the victim of domestic violence (or where their children might be at risk of sexual offences from a new partner) but I just can't see how this is a useful law.

To receive a disclosure the woman must go to the police and apply for the information.  The police then assess the request and decide whether it is appropriate to make a disclosure.

What strikes me about this is that to trigger somebody to go to the police the partner would have to be displaying some unusual behaviour; something that makes the new partner uncomfortable or suspicious.  If somebody is making you uncomfortable then why would you want to stay with them?

We, by which I mean a cultural or national we, seem to be slipping into a world where we distrust our own instincts and the evidence of our own eyes and experience.  We seem to rely more and more on others to take responsibility for us and guide us in our decisions.  I really do think that people need to trust themselves more.  Trust their instincts.  Trust the evidence of their own eyes.  If somebody makes you so uncomfortable that you need the police to officially endorse your relationship then it's not the right relationship for you.

Monday, 8 April 2013

Best Value Tendering

Brace yourselves because the topic today is a bit dull, but they're will be a reward for reading all the way to the end.

The Government is looking to introduce Best Value Tendering (BVT) as a new way of paying for criminal legal aid cases.  BVT is likely to mean the introduction of One Case One Fee (OCOF), but there's no reason that OCOF must follow BVT.  OCOF means that the solicitor is paid all the money and can chose how to run the case using it, so he might instruct Counsel or keep the work for his in-house advocates.  OCOF already exists in the magistrates court where fees are paid to solicitors who can chose to instruct Counsel.

At present solicitors receive one fee for handing a case, which is either a fixed fee in police stations and magistrates courts or it is a graduated fee, which is comprised of a basic fee and can go up if the case is particularly complex, this is measured by the number of pages of evidence served by the prosecutor or days that the trial takes.  Barristers are paid either an agreed fee in the magistrates by their instructing solicitor or they receive their own graduated fee in the Crown Court.

The proposal is to award BVT contracts based upon the lowest price.  So Smith & Jones Solicitors will bid to run cases for say £500 + VAT while Shotgun Bastard and Dribble might put in a bid of £400 per case.  The winner of this bid will be Shotgun Bastard and Dribble as the only criteria is cost to the government.

Recently, the government has run two bidding procedures to contract for criminal justice services.  The first was for firms to run the Defence Solicitor Call Centre.  This service assigns suspects in police custody to duty solicitors and, in a lot of cases, provides telephone advice to those suspects.  The DSCC staff can make a decision whether a suspect deserves a solicitor and, if they decide not, then the DSCC staff will provide telephone advice only and will not pass the suspect on to a qualified solicitor.  This went so well that a firm of unqualified 'lawyers' won the contract and promptly went bankrupt.

The second bidding process was for the provision of interpreters to assist defendants, victims and witnesses in courts.  That also went well with interpreters boycotting the contract winner - who turned out not to have anywhere near as many staff as they claimed.  There was chaos in courts for months afterwards.

All this gives me an idea - but don't tell anybody about this!  If BVT comes in, I'm going to bid for a contract.  I won't have any staff, but that doesn't matter because I'll rely on projections for staff recruitment rather than actual employed staff when I bid (I'll lie).  When I win the contract I will hire a small army of school leavers as "paralegals" to shuffle paper around the desks.  I'll hire some newly qualified solicitors and barristers who will all be going very cheap since nobody else will be in a position to employ them.  With those people in place I'll be in a position to run criminal defence cases for next to nothing, while enjoying huge profits generated from the fourth-rate service I'll be providing.

Best of all, if clients don't like my service it doesn't matter because they'll be nobody else in the area to represent them!

I promised you a reward for getting to the end... unfortunately for you I lied but I got you to read it, just like fibbing about staff will help me win that hugely profitable BVT contract.

Friday, 5 April 2013

Police cautions

Senior people, including police officers, have been making a lot of fuss about the inappropriate use of cautioning by the police.  For those who don't know a caution is a case disposal that police officers use instead of sending somebody to court.  The caution is recorded on their criminal record, although it's not itself a conviction for any offence.  The caution will be disclosed in some circumstances, e.g. if you go to court as a defendant or witness (if it's relevant) or if you apply for a CRB check.  You may also have to disclose cautions when you apply for jobs.  A caution is more serious than a fixed penalty notice.

Suspects can only receive a caution if they ADMIT THE OFFENCE.  I've written that in capital letters because it is very important.  You must confess and show remorse, or at least an understanding that what you did was wrong, to be eligible for a caution.  You cannot receive a caution if you deny the offence in anyway, e.g. by giving an alibi or putting forward a defence.

There's a lot of nonsense talked about inappropriate cautioning, which distracts from the real inappropriate cautions.  The typical example you'll hear is that in the past year 23 (or whatever, I'm making a number up here) people were cautioned for rape.  Think of rape and you think of a demented man grabbing a woman in a dark underpass, holding a knife to her throat and forcing her to submit to sex against her will.  That is rape and I seriously doubt that any offence with those particulars has ever been dealt with by way of a caution.

Cautions for rape are very rare.  They are usually given out because the prosecution are not going to be able to prove the allegation in court, maybe because the victim does not want to go to court or maybe for another reason.  I suspect more often cautions are given out for "offences" that you might not expect, as in my next anecdote.

A couple of years ago I dealt with a "rape" of a girl under 13.  My client was her "attacker" and I know, you're thinking I'm a nasty bastard for using the quotes on those two words.  But, this "attacker" was a tiny and very scared 11-year-old boy.  He gave an account, which I completely believed, whereby he had been shanghaied into going into a block of flats with this girl where she had performed oral sex upon.  He told me he was nervous about what was happening, but nonetheless went along with it.  Teachers at school found out, informed the girl's mother and between them the police were called.

After I had left the police station and against my advice he, on the advice of his mother, accepted a caution (for kids they are known as reprimands and final warnings, but it's basically the same thing) for rape - on a separate point I really do believe that at least 50% of parents should never be allowed near their child in custody, but that's a whole other post.  Because of his caution he is now a registered sex offender and must notify the police of his address.  That is a wholly inappropriate caution for rape, but not for the reasons the press would have you believe.

Last weekend I represented a couple of men who had been arrested for affray.  They told police they had been attacked outside a night club by three men.  They had serious injuries to prove it.  Despite putting forward an account in which they were the victims of an unprovoked assault they both accepted cautions after I had left the police station.

It seems to me that cautions are regularly being used to dispose of cases that where securing a conviction would be very difficult, if not impossible, but where the suspect is vulnerable to the promise of a speedy conclusion.  I assume that this boosts detection rates and is much cheaper than prosecuting.