Thursday, 30 July 2015

Do I really need a solicitor?

Man in handcuffs appears before a wigged judge
I'm not sure what country this court is in but you get the idea

I am approached fairly regularly by people who have gone to court without a solicitor because they’re “just pleading guilty” and it’s a “simple case” only to find that they have been shafted by the court.

In the most recent example, I spoke to a man who has some very ancient convictions from the 1980s and a more recent drink driving conviction from 2005.  The sentencing guidelines indicate that somebody pleading not guilty should receive a driving disqualification of between 36 and 52 months.

Having looked at the prosecution evidence there are no aggravating features beyond the previous conviction, which the sentencing guidelines take into account anyway.  There is always something to be said in mitigation, whether it’s mitigation of the offence or personal mitigation.  Although, having seen a number of unrepresented defendant’s they rarely put their mitigation well.

If I had appeared at court I would have been advising this person to expect a disqualification of between 36-48 months plus unpaid work of around 200-hours, taking account of the fact he has no convictions for a decade and was pleading guilty.

The District Judge passing sentence decided to impose a 60-month driving ban without giving any reason why he was ignoring the guidelines.  He also failed to give the defendant any discount for his early guilty plea also without any explanation.

What’s the moral of the story?  Get a bloody solicitor!

Here’s a really great solicitor (well it’s worth a try).

Wednesday, 15 July 2015

Defendants held in custody as no solicitor available to seek bail

Royal Courts of Justice
Royal Courts of (in)Justice

On the 1st July 2015, the government introduced a cut to solicitors legal aid fees, this was about a 9.51% cut from the rate applicable on the 30th June 2015 (nb at the same time the head of the Legal Aid Agency was awarded a 10% pay rise) and is part of an overall 17.5% cut in fees since the March 2014.  In reality, the cut is far more than a mere 17.5% because fees have been changed in other ways that need not concern us here, suffice to say that some of the cuts to fees are as high as 50% reductions!

Since the 1st July 2015, a very large number of criminal legal aid solicitors have been refusing to work for the new fees.  I am not surprised by this; I began handing back my legal aid contract in 2011 and ceased all legal aid work in June 2012 partly because the rates then were so low that I could not earn a living and simultaneous provide clients with the level of service that a) they deserved; and b) my obligations as a solicitor required.

The Ministry of Justice has claimed that the action is having no impact whatsoever; however, the police clearly do not agree with the Guardian reporting that “South Yorkshire police and other forces have confirmed that cases are backing up in custody suites and interview rooms”.  My own experience has been witnessing row upon row of unrepresented defendants in court waiting areas looking on, somewhat jealously, at those who can afford to pay privately for a solicitor to defend them.  I appeared at Uxbridge magistrates’ court earlier this week.  I asked court staff how things were going and was told it was a nightmare.  No defendants were ready and the court was preparing to sit at least two-hours late to 6.30pm and possibly beyond – this was at 11am!

Anyway, the point of this blog is really to discuss a point I saw made in the Guardian newspaper this morning.  They say that the protest has resulted “… in many defendants being remanded in custody because there is no solicitor available to apply for bail on their behalf.
With no solicitors, will you be relying
on the court cat to represent you?

Section 4(1) of the Bail Act 1976 couldn’t get much clearer, “A person to whom this section applies shall be granted bail …” it goes on to set out a number of exceptions, such as after convictions, but none of the exceptions includes “when there is no solicitor available to make an application”.

The court is obliged, by section 4(2)(a) to consider whether a defendant should be released on bail when “he appears or is brought before a magistrates’ court or the Crown Court in the course of or in connection with proceedings for the offence.”  Thus it is not sufficient for a court to say that they are going to refuse bail because there is no solicitor present to apply for bail.

Part of the point of this action, as I see it, is to show government, the courts and the public what life would be like without defence solicitors in court to assist all those involved.  

What have we learnt from the action so far?  Clearly that without defence solicitors the courts struggle to deal with unrepresented defendants.  More worrying is that without defence solicitors present to remind the courts of their obligations, the courts seem happy to ride roughshod over the rights of defendants appearing before them.

So, next time you are complaining about defence solicitors just remember that they are the ones who ensure that the power of the courts and the executive are kept in check!