Friday, 17 January 2014

To plead or not to plead

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 girlfriend and friends.  She let slip that she had been sleeping with somebody else behind his back and in a drunken fit of emotion he returned to his car, punched it once or twice then sat in it smoking for about 15-20 minutes after which time the police arrived and arrested him for being drunk in charge.  Police attended as somebody saw him punch the car and calling the police thinking he was a vandal.

Now, whether you believe him or not is irrelevant because we don’t know if it’s true or not; all we know is that he insists that it is the truth and that his account gives him a defence.

He decided to plead guilty, not because he accepts that he was going to drive but because he took a commercial decision that the cost of fighting and winning the trial was greater than the cost of pleading guilty at the earliest opportunity. 

Under the old system, a defendant who wins his trial would have had all of his reasonably incurred costs reimbursed from central funds (which are the Government’s pot of cash for paying out legal costs in cases they lose a case).  The new system; however, limits the amount of money that a defendant who is acquitted of all criminal allegations can expect to get back.

In this case, the defendant decided that the risk of not getting his money back following a successful trial outweighed the consequences of pleading guilty, losing his driving licence for up to six-months and accepting his first criminal conviction.

I can’t be the only one who thinks that the purpose of the criminal justice system is, as the Overriding Objective in the Criminal Procedure Rules says, to convict the guilty and acquit the innocent.  It’s one thing for a business to make commercial decisions whether to defend a case against themselves in the civil courts entirely on the money but it is not how the criminal courts should be run… not in my opinion at least.

Tuesday, 14 January 2014

What don't you like about human rights?

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 being a law graduate from King’s College London and the University of Law).

The rights and freedoms protected by the ECHR are:
1.       Right to life;
2.       Prohibition of torture;
3.       Prohibition of slavery and forced labour;
4.       Right to liberty and security;
5.       Right to a fair trial;
6.       No punishment without law;
7.       Right to respect for private and family life;
8.       Freedom of thought, conscience and religion;
9.       Freedom of expression;
10.   Freedom of assembly and association;
11.   Right to marry;
12.   Right to an effective remedy (for breach of ECHR); and
13.   Prohibition of discrimination (so far as enjoyment of rights are concerned).

When considering whether we agree or disagree with anything in law it’s always worth putting yourself or a loved one in the position of the parties involved.  So, imagine which rights you’d happily be denied to you or your children?  Would you deny your son the right to life?  Would you deny your daughter the freedom from torture?  Maybe you’ll happily see her sold into slavery, provided she’s neither tortured nor killed?  Does the local bobby think your son is a bit of a chav?  Maybe you’d be happy to do away with the rights to liberty and a fair trial so the police could lock him up indefinitely without trial?  No punishment without law means an act has to have been a crime at the time you did it for you to be convicted of a crime.  Let’s imagine you invest in a pension fund that in turn invests in nuclear power stations.  The Greens come to power (okay I know this is unlikely) and pass a law imprisoning anybody who has, directly or indirectly, invested in nuclear power, does that sound fair?  I could go on for quite a while in this way.

The most common response to “what right would you do without?” is “I don’t mind the rights just the way they are implemented by judges.”  For the most part this is because the person hasn’t understood the law, the facts or both – or to put it another way, because a newspaper or politician with an agenda has deliberately misreported the case.  As examples, I give you Mrs May and the case where she claimed a judge had allowed somebody to remain in the UK because he owned a cat when in fact the judge had noted the man owned a cat and said that it had nothing to do with his decision.  What about Chris Grayling our Justice Secretary who last year teamed up with the Daily Mail to decry the European Union’s Charter of Fundamental Rights – a document that does not apply to the UK in any event – which he claimed created 54 “new” rights.  In fact it’s a restatement of the ECHR for the most part and a small handful of “new” rights that are, in any case almost all already the law in the UK.  The "new" laws require doctors to obtain consent before conducting medical procedures and ban child labour.

Here’s a good example of some mis-leading coverage from the Daily Mail.  Here’s a couple of highlights.  They claim that the UK has lost 202 cases before the European Court of Human Rights, which is true, although they neglect to point out that the ECtHR has considered 13,515 cases against the UK.  In the original story, the Mail claimed that £4.4M had been paid out in compensation to criminals where in fact they later admitted that the total compensation ordered by the ECtHR is only £1.7M and that this money went to a range of claimants, not just criminals.  Also, the Mail has lumped this story together with two apparently unrelated ones about gas prices and the former Director of Public Prosecution’s incorrect assessment of the law on abortion.  I’d suggest the only reason this was done is to provide a misleading impression to readers and generate further hatred of the human rights that were created after the second world war to protect us all… incidentally, you might recall that the Daily Mail was the newspaper that supported Adolf Hitler and his Nazi Party as he committed the very crimes that led to the creation of modern human rights!

In the past couple of weeks I’ve read some interesting new reasons why we should do away with human rights, the gist of which seems to be that a) Hitler would probably have ignored them anyway so there's no point in trying to have laws that might have stopped him; and b) nations outside of the west do not agree with our western concept of human rights and so they are doomed.  Interestingly, I’ve yet to see any of these people suggest an alternative that they would approve of and that is acceptable to both the west and the east (and I suppose the north and the south).

Human rights may well be the modern morality for a world rapidly removed from the morality of religion.  I am happy to consider some alternative to human rights but I’ve yet to see one that is more acceptable to everybody than what we have now.  Having said that, I do have one alternative: I would be happy to become your leader and I will promise to ensure that everyone is nice to each other and not to kill too many of you when you displease me.  I could be given the title Lord Protector in Perpetuity.  I think I’d make a good leader of the world and moral compass for you all.

Wednesday, 8 January 2014

Britain's deregulation

Ken Clarke - author of the Deregulation Bill

The Government has released the text of the Deregulation Bill, which seeks to simplify regulation across a wide range of industries and professions – everything from driving instructors to sellers of knitting yarn to insolvency practitioners.  Hidden away at section 51 of the Bill is a provision allowing a Minister of the Crown to order that “legislation shall cease to apply if the Minister considers that it is no longer of practical use.”

I suspect that this is probably the most significant power a Minister has ever sought to take for himself in British history.

Currently, if the Government wish to dis-apply a piece of legislation they must pass an Act of Parliament that abolishes the previous law.  This is because Parliament is the supreme law maker so if Parliament makes a law then only Parliament can unmake that law.

As the anti-Europe brigade in the Conservative party regularly reminds us their problem with Europe is that it undermines the supremacy of Parliament, which they say is of utmost importance to our democracy.  So it is surprising that the same Tory party now seeks to undermine the supremacy of Parliament by allowing a Minister to override Parliament and dis-apply a piece of primary legislation.

I’m sure it would never be used say to benefit political donors of course.

A few years ago the Government sought to increase the time a terror suspect could be held by police before charge from 14-days to 90-days.  There was outcry and Parliament defeated that attempt.  Had clause 51 of the Deregulation Bill been in force at the time a Minister of the Crown could have chosen to unilaterally dis-apply the parts of the Police and Criminal Evidence Act 1984 that deal with the time a suspect can be held leaving a situation where there is no time-limit at all!  Had they not been totally crazy they could have then amended the Police Codes of Conduct, which is already within the Minister’s power, to impose their 90-day limit, all against the will of the supreme law maker that is Parliament.

I grant you that this sounds far-fetched but civilised nations turned into barbaric dictatorships within living memory!  While laws alone won’t stop an armed group taking power and replacing those laws; a strong set of laws can help people who oppose the barbaric regimes coming to power in the first place.  I can’t help thinking that had ordinary Germans paid more attention to the plans of Hitler before he took complete control of Germany then his rise could have been averted.

Leaving that aside, what’s the next logical step once this law is passed?  After a couple of years why would the Government of the day not suggest that since Ministers can be trusted to dis-apply laws then why not let them apply new laws?  Obviously, they’d only be allowed to do it when necessary and they’d have to tell Parliament about it before making the law and Parliament could vote against it… if they notice it… assuming there’s Parliamentary time for debate before the time-limit for objection expires – that’s okay isn’t it?

Monday, 6 January 2014

Special measures for witnesses

Following on from my earlier post on the Government’s plans to bring in new rights for victims I thought it might be worth saying something more about the final promise David Cameron made to victims, namely that there would be “more protection for witnesses”.

Since Dave wants to offer more protection for witnesses, I thought it would be interesting to think about what protections already exist and then compare those to what Mr Cameron is offering.  However, we can’t do that since Dave hasn’t offered any firm proposals beyond the vague “more protection for witnesses” promise.  So, we’ll just have to see what currently exists.

Current special measures

A special measure is something that the court can use or do to ensure that a witness provides the best evidence possible.  They apply equally to prosecution and defence witness, although they do not apply at all to the defendant himself.  A witness can avail him or herself of a special measure if they are under 18 at the time of the hearing, lack capacity or are in fear or distress of testifying.  The fear or distress of testifying clause gives very wide scope for anybody who wants to claim special measures to get them… if you say you are scared of giving evidence how could anybody disprove that?

Currently there are a wide range of special measures:
Video link;
Evidence in private (D and lawyers cannot be excluded);
Removal of wigs and gowns;
Pre-recorded evidence in chief;
Pre-recorded cross-examination;
Intermediary; and
Use of any device the court considers appropriate to aid communication.

Screening a witness from the defendant is one of the most commonly used special measures.  A screen is literally erected or a curtain pulled around the witness box so that the defendant cannot see the witness.  This usually has the side-effect that neither the prosecution nor defence lawyers can see the witness either, which can make questioning difficult.

Video-links are a bit like video-phones in sci-fi shows – they rarely work perfectly first time, you regularly get the wrong number (although I’ve never seen a lady fresh from the shower pop-up as in Demolition Man) but when they do work they are quite good.  In a recent case I did, we had a prosecution witness who was too terrified of speaking in front of the jury to speak even behind a screen.  Once we tried the video-link he was able to give evidence, so a success.

Evidence can be given in private, which really means the exclusion of anybody who is not a lawyer, defendant, judge or juror from the room.

Removal of wigs and gowns.  This was done throughout the trial of the James Bulger killers, although that must have been under the judge’s powers to control his own court because the special measures a) didn’t exist back then; and b) do not apply to defendants.

Pre-recorded evidence in chief, cross-examination and re-examination has been possible for nearly a decade now and yet I have never seen (or heard) of it being done.

Intermediaries have been available for a long time but only recently seem to be gaining favour.  An intermediary is somebody who helps a vulnerable witness give evidence, they are there to ensure that the witness understands the question being asked of him and that everybody understands the answer.  I’ve come across a few witnesses who should have had an intermediary but I’ve never actually seen an intermediary in action.

The last special measure for the use of aids to assist communication is something intended for those with disabilities.

There is one other action the court can take to protect witnesses that applies in sexual offence cases and that is preventing the defence asking questions about the complainant’s previous sexual history.  To be allowed to ask such questions the defence must seek permission of the court in advance.

In ye olden days we used to say that a defendant had the right to have his accuser face him and accuse him of a crime, the idea being that it was harder to lie about somebody to their face I suppose.  Almost all of the special reasons change this position so that the accuser no longer has to face the person they are accusing.  Personally, I happen to think that this does make life much easier for the dishonest complainant but I suspect I am in the minority on that one.

What more can be done to protect witnesses?

The main complaint I hear from witnesses is that they dislike tough questions from defence lawyers and, in particular, being called a liar.  I recently cross-examined a man on the basis that he was lying; I know he didn’t like it as he gave me a lot of dirty looks and at one point complained to the judge about me calling him a liar.

Under our current system there isn’t very much that can be done about this because as lawyers we don’t call people liars for a laugh, we do it because our clients say to us “that didn’t happen, he is lying”.  People regularly say that we should have an inquisitorial system like in France.  I hear from fellow lawyers that the French system is horribly unjust.  I also understand that the French do use the same system as us in any event.  Although, the criminal procedures begins as an inquisitorial one, if the defendant insists that he is not guilty then it turns into an adversarial system like ours.

Even if we choose to scrap out current system tomorrow (which to be honest wouldn’t bother me that much so long as I don’t have to spend years learning the new system) I cannot fathom how we can deal with a situation where two people say the other is lying without putting to each of them “you are lying”.

This might sound harsh but let’s remember that 27% of defendants tried in the Crown Court are found not guilty after trial and every one of them plus many of their defence witnesses will have been called a liar by the prosecutor.  Incidentally when I started working in criminal law, a few years before special measures appeared, I was always told that only 20% of Crown Court trials resulted in conviction, which if correct would suggest there has been a huge swing in favour of the prosecution.

What do you think?  What else can be done to protect witnesses?  Should anything else be done?

Sunday, 5 January 2014

Drink driving: proposed sentence increase

As regular readers will know, I run a drink driving solicitor firm and so have a particular interest in drink driving cases, so when I came across the Drink Driving (Repeat Offenders) Bill on the Parliament website I had to say something about it.

Rehman Chishti MP for Gillingham and Rainham has laid the Drink Driving (Repeat Offenders) Bill before Parliament under the 10-minute rule.  Because it is a private members bill there is little chance of it becoming law unless the government decides to allow it sufficient Parliamentary time to progress through Parliament.

Currently people convicted of drink driving can receive a maximum of six-months imprisonment no matter how many times they have been convicted in the past and no matter how high the level of alcohol in their system at the time they drove.

The Drink Driving (Repeat Offenders) Bill will give magistrates the power to send cases to the Crown Court where offenders can be sent to prison for up to two-years.  It’s unclear whether the Bill will convert drink driving into an either-way offence, which means that trials can be heard in the Crown Court as well as the magistrates’ court.  Normally, where an offence carries more than six-months imprisonment it follows that a trial can be heard in the Crown Court.  At the time of writing the full text of the Bill has yet to be published but the summary suggests that the Crown Court would have no power to hear trials but merely to sentence repeat offenders.  That would make it the only offence to be tried only in the magistrates' but with sentence imposed by the Crown Court, which makes me wonder at the quality of the drafting that has gone into the Bill, but time will tell on that front.

I’ve long been surprised by the very low sentences attracted by drink driving offences in comparison to vilification aimed at drink drivers by police and government so I’m not surprised to see a bill like this appear.

Friday, 3 January 2014

Aiming for a century

D.W. Cameron Batting for a hundred

Continuing his legal fuckwittery, David Cameron, Prime Minister, has announced that he would like to see courts bowling defendants out with 100-year sentences because the nasty European Court of Human Rights has said that whole life sentences are unlawful in the case of Vinter v United Kingdom.

As usual I’m annoyed by this because it is nothing more than a bid to shift the politics of the UK in an ever more xenophobic direction.

The start of 2014 saw the Labour party, led by the son of an immigrant, shift a bit further to the right when they joined the Conservatives, UKIP and a collection of other anti-foreigner types by scaremongering about the hordes of Bulgarians and Romanians due to sweep across the UK on the 1st January 2014.  Labour took the ironic decision to send another immigrant in the form of Keith Vaz (born in Aden, Yemen to Indian parents) to monitor the arrival of immigrants arriving in the UK.  He was left looking somewhat stupid when flights arrived (often only two-thirds full despite claims by many than all flights were fully booked) carrying mostly people returning from their Christmas holidays rather than new immigrants coming here to steal, beg and claim benefits we were promised.

Given the political-classes hatred of all things foreign you shouldn’t be surprised to find out that the European Court of Human Rights did not ban the UK from imposing whole of life sentences on the most serious offenders.  What the ECHR said is that such sentences breach article three of the European Convention on Human Rights because there is no mechanism for reviewing the sentences once passed to ensure that a whole life sentence remains appropriate.

A long long time ago in a slightly less xenophobic Britain we had a law called the Crime (Sentences) Act 1997, section 29 of which allowed the Secretary of State to release whole life prisoners on the recommendation of the Parole Board and following consultation with the Lord Chief Justice and the trial judge.  Such reviews were carried out, I believe, 25-years after sentence.  This provision allowed us to be certain that the whole life sentence remained correct and that the intervening years had not rendered the sentence unjust.

The Labour Government of Tony Blair enacted the Criminal Justice Act 2003, section 303(b)(i) of which abolished the Secretary of State’s power to release whole life prisoners and thus the review that went with that power was abolished as well.  No equivalent power was handed to anybody else meaning that once a court imposes a whole of life sentence there is no further review unless the individual appeals – although it’s worth remembering that the review dealt with prisoners who were correctly sentenced not those who’s sentence was manifestly excessive at the time it was imposed.

The current Government under the increasingly foolish David Cameron and his increasingly frightening Secretary of State Theresa May seeks to argue that we should abolish the Human Rights Act 2008 and withdraw from the European Convention on Human Rights.  They cite the ECHR’s ruling in Vinter as a reason for this withdrawal.  Let’s consider what other steps could be taken?  Well, they could simply reinstate the review after 25-years, which would render the whole life sentence compliant with article 3 of the ECHR and thus lawful once again!

But then if they did that they’d lose all the capital built up in attacking “Europe” for their outrageous infringement of the sovereignty  the UK and in doing so will again allow the British public to confuse the European Court of Human Rights with the European Union, which of course have nothing to do with one another.

Thursday, 2 January 2014

Victims Charter

I’ve been reading that “Call me Dave” Cameron, our esteemed Prime Minister, is jolly keen on strengthening the rights of victims through his toughened up Victims Charter.

The aim of the charter is to combat complaints from victims of crime who feel that the criminal justice system fails to take account of their views and needs.  Before we go any further, it’s worth saying that despite some changes to court procedures; victims of crime play only a small part in the over-all criminal justice system.  This is because the system developed essentially as a way to allow the King of the day to dispense justice, which he wanted to do to keep control of his kingdom.  This developed over centuries to the current system whereby the state brings a prosecution against an individual (although even today all criminal cases are technically brought by Her Majesty the Queen against an individual).  Because of this historic development victims are not a party to criminal cases and so they have no representation and can only contribute in so far as they can give evidence of the crime committed against them.  Victims can currently give a “Victim Impact Statement”, which we will discuss further later on.

The proposals

Davy C’s “new” (it isn’t new) Victims Charter will have six key points that he wants to make part of the “law” of England and Wales.  The main points are:
1.       Victims to be offered support within 24-hours of reporting a crime;
2.       Police and prosecutors will have to explain every step of the investigation and prosecution;
3.       Victim impact statements must be read out in court and the judge will be required to take the impact statement into account;
4.       Details of sentences must be spelt out;
5.       Victims would have to be consulted by the Parole Board and warned when an offender is to be released; and
6.       More protection will be provided for witnesses.

What the proposals mean in reality

As regular readers of this blog will know, I firmly believe that much of what politicians (especially senior politicians) do is simply for show rather than a serious attempt to address a real-life problem.  So that bias declared you won’t be surprised to hear that I firmly believe that to be true of these proposals.  I’ll explain why I think this for each proposal.

Support offered within 24-hours of reporting a crime

As with most of the proposals, number one is so vague as to be meaningless.  I’ve been a victim of crime a few times in my life: an attempted robbery when I was 15, a break into and theft from my car when I was 20 and a couple of (very minor) assaults in my late 20s and early 30s.  I reported the attempted robbery and one of the assaults to the police.  Both times I received information about victim support and a letter inviting me to come along to a meeting should I feel the need.  These incidents were separated by 15-years and occurred in different places yet I got the information very quickly after reporting the minor offences.  So we can see that offering support is something that has been going on for at least 20+ years.  Will offering that support within 24-hours make a significant difference?  I suggest that in most cases it will not.

The second point is that the commitment is not to provide support, merely to offer it.  How will this be achieved?  I suspect by having leaflets available at police station front counters, information on websites and emailing people who report crime.  I’ve yet to see a suggestion that Dave will be pumping the victim support charities with cash for them to provide any more services so I suggest that promise one is at best hot air.

Explain every step of prosecution

I have to admit that I do not know the current procedures on this one – although I am often told by CPS and police officers that they will need to “seek the victims views” before agreeing to particular course of action I have suggested.  When I call the CPS I am often met with a message telling me to press 1 if I am a victim of crime wanting an update on my case.

Good practice would suggest that you should always keep your witnesses informed about what is happening in their case. 

Victim impact statements

There are two parts to this promise.  First that an impact statement will be taken in every case and secondly that the judge will be required to take into account the victims comments in the impact statement.

A victim impact statement is a witness statement made by the victim of a crime in which he or she spells out how the crime has affected them.  They have been in existence for many years now, although they are rarely taken because the police lack the resources to take them.

So, the first question is where will the extra funding come from to employ more police officers to take the extra impact statements?

The second part of this promise makes this the most dangerous and potentially counter-productive of the six promises.  Victim impact statements are given to the court after the jury has convicted the defendant.  They can contain information that the defence disputes to be true.  The only solution currently available is for the court to ignore the victim impact statement or for the defence to cross-examine the victim again.  As victims often complain about being called a liar during cross-examination I fail to see how this will benefit them. 

It’s worth saying that I am not aware of any victim ever having been cross-examined on their victim impact statement, although they are relatively rare at the moment.  If they appear in every case then victims being called liars for a second time will be inevitable.

Sentences to be spelt out

Er… because currently judges don’t reveal the sentence to anybody?  I don’t honestly understand how anybody who understands the criminal justice system could put this forward as a proposal for improving things for victims.

Judges at all levels spell out the sentences they impose in detail and have done since I first appeared in court so I have literally no idea what Davy-C wants to happen.

Victims to have a say before Parole Board and warned of release

Victims of serious crime should certainly be warned when the people who offended against them are to be released from prison.  This is unlikely to be practicable in every case due to people moving and not updating prison authorities with their new addresses.

When considering whether to release a lifer the parole board considers whether the person is safe to be released.  To do this, they take evidence from every available source.  They have access to the original evidence the sentencing judges remarks and, most importantly, evidence from pretty much everybody the prisoner encounters at their prison.  Reports are written by inside and outside probation officers, prison officers, the chaplain, teachers, healthcare staff – literally anybody the prisoner encounters.

Let us say that Terry is in prison for murdering Natalie.  He received a life sentence and has served 18 years of a 15 year tariff, so he’s spent 3-years longer in prison than the sentencing judge set as the minimum.  While I have no doubt that Natalie’s parents are still distressed 18-years later can they really add anything that the parole board can usefully take into account when deciding if Terry is fit to be released?

The only way to make this work is to completely change the function of the parole board from one that considers whether the offender is safe to be released to one that considers whether the offender has spent so much time in prison that justice has been served.  Currently, I don’t think the proposal is capable of achieving that so this promise is practically worthless.

Protection for witnesses

The final promise is for more protection for witnesses.  This is a whole blog post in its own right so I do not intend to give it a full airing here.

At present, the courts can impose restrictions on the questions that the defence can put to victims of sexual offences and can adopt special measures that aim to make witnesses (not just victims) feel more comfortable giving evidence.  I am not immediately sure what Dave means by “more protection” but short of preventing the defence from putting certain questions to prosecution witnesses I am not sure what else can be usefully done.


To conclude, without wholesale reform of the criminal justice system (which doesn’t seem to be planned) the proposals are a mixture of things that already happen, vague meaningless promises and at least one change that has the potential to make things worse for victims.