Monday, 22 December 2014

Why is rehabilitation treated as a punishment?

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 punishment as serious as a community order.  In law, the court was quite right – the possession of a single wrap probably did not merit a community order.  In practice, they will find themselves sentencing this man again in the next few weeks when he commits further offences.

This leads me to ask the question: why do we treat rehabilitation as a punishment?

I have no idea why rehab isn’t imposed as an ancillary order rather than as a sentence.  There’s no reason why participation couldn’t still be mandatory but making the requirement ancillary to the sentence would enable the court to help more offenders get themselves clean and that means less crime for everyone else.

Wednesday, 17 December 2014

Iffy experts, barely there solicitors - who do you trust?




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 “pile ‘em high and sell ‘em cheap” approach to law that I thought only existed in less reputable legal aid firms.

It seems to me that this firm have turned a perfectly winnable case into a no-hoper.

The client is accused of failing to provide a specimen ofbreath for analysis.  Her defence is that she has a medical excuse for her failure, namely that the prescription medication she is taking causes shortness of breath.  This is a common side effect of the drug.

The “solicitor”, and I use quotes because the person conducting the case is not a solicitor although this individual is employed by a solicitor’s firm, has instructed an entirely inappropriate expert to give a report.  The expert lacks knowledge of the fields on which he is reporting but has nonetheless given a report that looks at three distinct fields, none of which he appears to possess expertise in.

In my opinion, reports should have been obtained from an expert in the operation of the intoximeter (there are only three experts recognised by the manufacturers although lots of others claim to be experts), a pharmacologist and a respiratory expert.  It is entirely possible, even desirable, that one expert who is qualified in the human respiratory system and the interaction of drugs upon that system could be found.  The expert chosen discloses no knowledge, training or experience in any of the three fields!

The instructed expert has found that the drugs had no impact upon the defendant’s ability to provide despite shortness of breath being so common that the box has a warning on it!  It is entirely possible that this defendant did not experience the side effect; however, since the expert has not taken the time to examine the defendant nor her medical records his conclusion can only be a guess.

Spirometry Test - sorry for the poor quality
He concludes that her lung function is sufficient to provide a specimen of breath yet he has not performed a spirometry test upon her and, as I say, has not considered her medical history, which includes pneumonia and other similar conditions that may be relevant.
In the report he states that “it is believed that” the intoximeter behaves in a certain way – with respect a real expert knows how it functions and does not need to guess.  He was correct, I know because I checked with one of the approved experts who has received training from the device manufacturers and can pick up the phone to them whenever she has a difficult question.  If he is having to guess then he is not qualified to give an expert opinion.

As seems to be common with a number of the firms who operate according to what I call the “minimum work possible principle” nobody from the firm has ever met the client for a face-to-face discussion of her case.  I know it is possible to prepare a case adequately without meeting the client (I once met an armed robber client for the first 6-months after his case ended – he was so pleased with my work he literally got on the floor and kissed my shoes!!) but I do think that if you are going to do the job properly you should make the effort to meet them.  Most drink driving clients are first-timers before the courts and really appreciate the chance to meet with their solicitor and discuss the case properly, which is why I always try to do that – I even travel to meet them somewhere convenient to them for our meetings as a standard part of the service I offer!

If you are looking for a solicitor then do please read the guide I’ve produced, which is published today, part 2 on Monday the 22nd and the final part on Christmas Eve over on http://drinkdrivingsolicitor.blogspot.co.uk/.  Do take the time to ask any potential solicitor a whole lot of questions about their service, their experience and what they will do for you.  Don’t ask about success rates – it’s the legal equivalent of going to a used car dealer and kicking car tyres.


Whatever you need a solicitor for – good luck in your case.

Monday, 15 December 2014

Extraordinary day in court

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 for most of a day due to the failure of one computer system but not a word of this farce have I read in the press despite a journalist being present in the court I was sat in.

Today was definitely the most bizarre farce I've ever witnessed in a court room.  The prosecutor was running late due to an accident on her way in - these things happen.  When she finally made it to court she found that her new CPS tablet wasn't working properly - this is a problem because all CPS papers are stored on computer these days.  She was called into court by the chairman of the bench who demanded an explanation be giving in person.  Said explanation that was duly given and an argument ensued between the prosecutor and the bench.  I'm not sure exactly what started it but the chairman was treating the prosecutor like a disobedient schoolgirl, in return the prosecutor spoke to the bench like it was composed of rather simple-minded fools who refused to listen to reason.

Eventually, both bench and prosecutor left court.  As she left the prosecutor declared that she would not assist the court and they'd have to find somebody else to prosecute the list.

Papers for all the cases and a working computer were delivered to court.  The prosecutor came in long enough to confirm to the clerk that she was no longer willing to prosecute and another prosecutor would be required.

This stand-off continued for over an hour after the papers were delivered to court with the prosecutor in her room refusing to budge.  Eventually, the court's legal advisor intervened and persuaded the prosecutor to do her job and we managed to get proceedings under-way at 11.50am - a mere 1 hour 50 minutes after the court should have heard the first case!

By that time one young woman defendant had missed her grandfather's funeral and even the investigators who brought the case against her were complaining that the delay was an "inhuman" way to treat people.

The more I attend court the more it's like appearing in a Carry On film.