The Defence Brief

Smoking heroin I was in court today for a duty session.  I represented a man with a long history of drug abuse and offending.  He had taken a ten-year break from crime and drugs, partly because he spent four-years in prison and partly because he met a woman, married and had kids.  A family breakdown has led him back to heroin. In the past year he’s committed a couple of minor thefts and been found in possession of heroin, which is why I represented him today. He agreed he needed help to kick the drugs and wanted me to apply for a pre-sentence report aimed at a community order with a drug rehabilitation requirement attached. His instructions and the recent offending indicate an escalation in offending meaning it’s very likely that without support he will find himself back before the court having committed further offences. Ultimately, my application for a PSR was refused on the basis that the offence was not sufficiently serious to warrant a punishm...

Andrew Wakefield - not the expert in this case but another very dodgy expert who was out for himself I have begun a three-part series on my heavily under-used blog The London Drink Driving Solicitor looking at how to find the best solicitor for your case.  It was inspired by some work I did recently for a potential client. This person is represented by another motoring solicitor who has charged her £915 to prepare and conduct a trial – this figure includes an expert report and Counsel’s fees for the first appearance and trial.  Most barristers want £150 - £250 + VAT for a first appearance and between £350 - £500 + VAT to conduct a magistrates’ court trial like this one and I’m told that the expert report cost £450.  So, I’m not really sure how the firm is making any money from these cases, which is why I wasn’t surprised to see that not very much attention appears to have been paid to the preparation of the case.  This is an example of the “pil...

These days it's not unusual for something to go wrong in court but in the past two-weeks I've witnessed two of the worst breakdowns of my career - if you don't include the prosecutor I made so angry in court he tried to punch me that is. On the 8th December the court service computer broke down nationwide.  I was in Thames Magistrates' Court at the time and witnessed cases being adjourned as no trial dates could be fixed - this meant that they were setting new dates with no idea as to how busy the court would be on the next occasion.  In a number of motoring cases, the court was unable to verify defendant's driving records due to the failure meaning that people who ought to be banned as they had totted up to 12 or more penalty points could potentially escape disqualification - I don't know if this did happen. I heard from colleagues that courts all over the country were in chaos.  An entire nation's criminal court system all but stopped working fo...

A PC, no doubt busy "wrongly dishing out" a caution I read a news story this morning telling me that Chris "Failing" Grayling is to scrap police cautions so that victims of crime do not feel as though offenders are "walking away scot-free". First, I should say that I don't hold any firm views on whether this is a good idea or not; however, being deeply cynical of all noises emanating from the mouths of politicians I am inclined to see this as populist hot air. What are police cautions?  In case you don't know and, like Mr Grayling, believe that a police caution means nothing I shall explain what these things are.  The police can issue a caution where a crime has been committed, somebody has admitted to the crime and has expressed regret.  They will not usually be given if the offender has received a previous caution or has been convicted of a similar offence.  They are useful where it might not be wise to criminalise somebody, e.g. a 12 ye...

I'm always amused by claims made by other solicitors and concerned when a lot of them don't appear to be quite as honest as they should be. I regularly hear potential clients give me an account of their escapades that discloses a potential defence or special reason for avoiding a driving disqualification.  I'll give them an honest opinion based on the information they've given me only to be told that another solicitor has told them that he or she can guarantee an acquittal.  It doesn't take a genius to work out that anybody who can guarantee an acquittal is selling snake oil, especially when the claim is made without having seen any evidence whatsoever. Success rates are another favourite claim of mine - personally I tell anybody who calls that I don't keep a record of success rates because they are rather meaningless.  If I decide to only take cases I'm likely to win then I can engineer a very high success rate.  Alternatively, I might get to my chosen ...

But it would be nice if we could get the law right If you see me in court and somebody brings up a point of law you may well hear me jokingly ask the judge “not to bring the law into it”.  I don’t mean it (unless the law happens to be against me, in which case I’d much rather it were left out), but there are an increasing number of people who genuinely seem to believe that the actual law has no place in a court of law.  They will happily quote their version of the law but the actual law… well we’ll leave that at the door. I recently conducted a trial at the start of which the prosecutor forcefully informed me that my defence had no basis in law.  I obviously told him that was jolly fascinating and that he should tell somebody who cared.  Next up popped the court legal adviser who told me the same – in suspiciously similar terms to the prosecutor.  I pointed out that my defence was valid at which he scoffed.  I recommended he go and read a particu...

Revenge porn I talked about the proposal to create an offence involving images that are construed to be "revenge porn" back in June .  It's an issue that simply won't die the death it so desperately needs to. In the latest instalment of the campaign for yet more legislation the BBC published a story of one woman's "six-month ordeal" at the hands of her ex-boyfriend . I am sometimes accused (usually by people who don't read the whole thing) of lacking sympathy for victims and not wanting offenders prosecuted, but that's not true.  I do have sympathy for this lady and have no problem with her ex being prosecuted.  What I object to is the knee-jerk reaction to create a new crime for every social problem in the hope that will solve the problem... it won't!  I'll let you into a secret - murder has been illegal for as long as anybody can remember yet people are still murdered... on average someone is killed unlawfully every day !  Makin...

I sometimes find myself despairing at the stupidity of the Criminal Justice System.  It's 5am as I write this and I've just had a client charged with the offence of causing a public nuisance, which is an ancient common law offence of little value in the modern world - I tend to think that when an offence is so rooted in history that nearly all the major developments happened not in this century, nor the one before and only barely in the one before that it may be time to let the offence quietly die.  The earliest case on public nuisance I can easily find that is still relevant dates from 1703 and the current definition of the offence appears to date from sometime prior to 1835! Public nuisance, no matter how ancient, isn't the stupidity that has me up and annoyed when I should be asleep. In this case, the accused was transiting the UK at a major airport.  His flight was delayed and staff found his behaviour sufficiently egregious that they called police after a thr...

Revenge Porn Julian Huppert MP, a Liberal Democrat Member of Parliament, has called for a new law to outlaw “revenge porn”.  Now for those who don’t know, revenge porn is the name given to the publishing online of intimate photographs of an ex-partner for the purposes of taking revenge for some real or imagined offence by the “victim”. Mr Huppert correctly points out that “[l]ives can be ruined, personal relationships destroyed and jobs lost”.  That’s terrible, but it raises a couple of important questions: a) does the harm necessitate yet another criminal offence?  And b) is the criminal law an appropriate tool for dealing with this type of behaviour, i.e. should “revenge porn” be a crime? Over the past 20-years or so, it has become very trendy for Governments in the UK to create new criminal offences – I believe that by the end of the last Labour government they had created more new crimes then every other government before them put together!  As a s...

A real life burglar... no idea why police can't catch them given they all wear stripy tops and carry bags marked "SWAG" Tomorrow I am at a west London Crown Court starting a trial for possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002.  Let me begin by assuring you that this is a provision that does two things: a) it really pisses me off; and b) it shows why the legislature should not put its faith in the prosecuting authorities only using criminal offences for the purpose the legislature intended. My case is straightforward, prosecution say my guy has a stolen laptop in his possession and that he knew or suspected it to be stolen.  If they are correct then he is guilty, if he bought it honestly then he is not guilty.  Easy. You may be forgiven for thinking that possessing stolen property is an offence called “handling stolen goods”.  If you thought that then you are correct, section 22(1) of the Theft Act 1968 ...

There’s been a lot of talk on the TV, radio and in the press over the past couple of days about the introduction of a new criminaloffence to outlaw the emotional abuse of children.                                                                                  This follows an NSPCC report which shows a surge in emotional abuse and neglect cases .  Because all new laws involving children are now required by the Ministry of Silly Names to have a silly name, this proposed law is called the Cinderella Law.  Presumably because the ugly sisters neglected her and subjected her to regula...

Not my judge... but might as well have been I had the joy of travelling to court today for a wasted costs hearing. If you don’t know, where costs are incurred by a party to proceedings because of an improper act or omission by another party the court may award costs against the party who did the improper act or omitted to act.  These are known by lawyers as wasted costs.  This is important because it allows a party to recover costs they would not have incurred but for the other party’s error.  This can be used by the prosecution or defence in criminal proceedings.  It is not an easy test to meet and the party making the application must show that there was something improper about the other party’s act or omission. In my case, the Defendant had been acquitted.  More correctly, the prosecution had discontinued the case the day before trial despite being aware that they had no case since the very first court hearing.  Had they acted properly at...

Morpeth Street Coronation Street Party I went to see my parents yesterday; they don’t often talk about their childhoods but yesterday my mum told me about the death of her Nan and a time when one of her elder brother had pneumonia. As a child, my mum lived in a condemned slum dwelling in east London where I’m told that the ground floor lacked floorboards and was uninhabitable.  A couple of years ago my uncle (who is about 15 years older than my mum) told me that he was ashamed to live there and despised the acceptance of the conditions they lived in by those around him. It was in those conditions just prior to the beginnings of the NHS that my great-grandmother fell ill.  There was no NHS to help her and the family could not afford to pay a doctor.  They were fortunate that the Whitechapel hospital was very charitable and doctors could be found to tend to the sick.  A doctor duly visited my great-grandmother at the family home and promised to do anything...

A police road check in action Last night I caught part of a BBC3 TV programme that focused on different aspects of parking from one man who hangs about outside his house with binoculars trained on anybody daring to park on “my” road to bailiffs engaged in stopping motorists who had outstanding parking fines and seizing their vehicles.  It was the bailiffs that interested me the most. First, I should say that bailiffs do not have the power to stop traffic, only the police can do that and, sure enough, there were police officers conducting the stops to allow the bailiffs to carry out their work.  My first thought was that surely the police have better ways to spend their limited resources than helping private companies enforce civil debts (parking tickets were decriminalised a long time ago).  Then I got to wondering how the police could have the power to stop somebody for such a reason. There are a variety of powers that allow the police to stop a motor vehi...

This seemed appropriate When I was training, I was taught that solicitors and barristers should be highly professional, doing their best for their client no matter what – especially if the clients’ interests conflicted with the lawyers’ personal interests. What I see in practise from those undertaking legal aid work almost always conforms to those high principles.  Sadly, the more I hear about lawyers undertaking privately financed work – i.e. criminal law work paid for by the client rather than legal aid – is falling short of those principles far too often. Today I spoke to a client who has a drink driving case.  He contacted me and another solicitor for representation.  Neither of us has seen the prosecution evidence since it has not been served yet.  I have my note of our original conversation in front of me, I advised him on possible defences, special reasons and the likely sentence if convicted or if he chose to plead guilty.  After hearing...

People often call me after they've been charged with drink driving to ask for legal advice ... makes sense, I suppose.  The one question I get asked the most (except "how much is this going to cost me?") is "Do I need a solicitor?"  Now, I'm an honest sort of chap so my answer is always "yes"... I mean unless you happen to have the expertise to analyse the prosecution evidence, look for holes in it and devise an appropriate defence or put together a well crafted speech in mitigation that is. A few months ago a lady contacted me looking for some advice and somebody to help her minimise her sentence after she was charged with being drunk in charge of a motor vehicle.  Convinced she had no defence all she wanted to do was plead guilty and take the punishment that was coming her way. When I spoke to her and looked at the evidence I quickly realised that she had been in a private car park that did not fall within the legal definition of either a roa...

Chris Grayling MP, our Lord Chancellor and Minister for Justice has announced that people convicted of crimes in the criminal courts (i.e. criminals) will be made to pay £600 each towards the cost of prosecuting them. It’s a policy designed to garner headlines and popularity in the right wing press (leadership bid in the future I wonder) rather than one actually intended to bring in any money… at least I hope that’s what it is otherwise Mr Grayling really is as badly informed about the Criminal Justice System as everybody says. The policy is wrong for two main reasons.  First, if you believe that criminals should pay the costs of bringing the case against them then why not charge them the actual costs of doing that rather than an arbitrary £600?  A simple shoplifting may well cost less to bring to court whereas a fraud could cost thousands of times that £600 figure.  So, from an ideological stand point it makes no sense. At this point it’s worth declaring my ...

This has nothing to do with the post but I thought it was funny From the National Office of Importance I represented a defendant today who was accused of being drunk in charge of a motor vehicle, which is essentially an offence the police can charge where they cannot prove that somebody has driven or is about to drive. The scope of the offence is very wide, essentially you are guilty if you are a) over the drink driving limit; and b) in charge of a motor vehicle.  So, in theory if you have a few drinkies at home and your car is parked outside you could be guilty of a drink driving offence.  Obviously this would be both silly and unjust, so there is a defence built into the statute that you are not guilty if there is no likelihood of you driving the vehicle while over the drink driving limit. In today’s case, this defence was wide open to my client.  I won’t bore you with the full details but essentially the client states that he was out drinking with his gi...

Viscount Rothermere (then owner of Daily Mail and Daily Mirror) meets Adolf Hitler The past few weeks have been mildly interesting if you like reading about human rights and why we shouldn’t have them.  The idea of people arguing that they shouldn’t be entitled to human rights always reminds me of a friend of mine who hates the idea of consumer rights, not because he runs a business but on principle; not that he lets it stop him exercising his consumer rights when it suits him. My friend also hates human rights.  He doesn’t dislike them or disagree with them, he hates them.  Like many people who despise the notion of human rights he is also passionately anti-Europe (although unlike most people he understands that the European Union has nothing to do with the European Convention on Human Rights).  Also like most people who hate human rights, my friend can’t say which of the individual rights he would like done away with (and he does know them all bei...