Saturday, 24 December 2016

A day in the youth court

The Criminal Justice System is not the place for vulnerable kids
Today I took a break from my usual diet of drink driving to covered a stint as youth court duty solicitor for someone who couldn’t make it. I haven’t been a youth court duty for quite a long time but it wasn’t too bad.

I arrived bright and early at 9.30am ready to collect my papers for the day and get to work. But, there were no papers and nobody in need of representation. I found a room, did some work until lunch time then sat back with a couple of episodes of the X Files for an hour and a half (thank you Amazon Prime).

Just as the second episode ended (it was the one with the secretary whose boss was murdered and who is now protecting her from terrorists and his former business partner from beyond the grave) I got a call telling me that there was, at last, somebody for me to see.

Dashing up to the CPS room, I collected the papers and then ran to the cells to see my new client. It’s ages since I’ve been to this court building (and even longer since I’ve been to the cells) so I spent a few minutes searching for them. I followed my nose, tracing the smell of shit along the corridors until I found its source. I think the custody officers had been in there so long their olfactory sense is no longer activated by the stench of human waste that seemed to fill the whole place or maybe they’re just not such delicate little flowers as me.

On my long, circuitous, journey I was able to briefly glance at the charge sheet. My client had assaulted two police officers simultaneously.

Once I found the custody suite, I was led along a cell lined corridor by a gaoler to the door at the far end. I was impressed to note disabled washing facilities available to the left of the cell – didn’t expect the court cells to be quite so Equality Act compliant.

The gaoler disappeared briefly into the cell at the furthest end of the corridor, emerging a moment later politely beckoning the occupant out. Nothing. “Shall I head in to the interview room?” I asked.
“No, let this one go in first.” A warning in his voice. Still nobody appeared from the cell door. Another polite request for my client to attend was met with a soft grunt and the sound of shuffling. A moment later the fearsome assaulting of police appeared.

A small mousey haired girl emerged from the cell. “Hello,” she said in the soft voice of a child. I introduced myself. “I’m Emily,” she would have said had that been her name.

We sat down together in the interview room where, for the first time, I began to read out the allegation against her. Emily is 15 years old, she’s originally from another European country and appears to be in the UK alone, having been taken into care. She lives in a children’s home and it’s clear she doesn’t much like it there. At the end of our interview she asked whether she’d have to go back to the home so quietly that I had to have her repeat the question three times before I could make out the words. Throughout the interview, when she speaks, she is softly spoken, quiet and polite, although she doesn’t have much to say beyond admitting the charges.

The allegation is that she was reported missing from the children’s home. At around 1.45am police answered calls from a member of the public to a female screaming loudly in the street so police attended and found the missing girl. She was drunk and obviously vulnerable. The officers, rightly decided to take her home despite her demands that they leave her alone. Because she would not come quietly and was being aggressive the police put her in handcuffs and returned her to the care home where staff tried to calm her down. It didn’t work and she lashed out at the police officers kicking them both in the shins without causing injury. The officers put her on the ground – in their words “gently placed her on the ground”, in her account “forced me down and bruised my wrists where they twisted the cuffs”. I did not see any bruising but then the incident happened two months ago.

The police referred her to the Youth Offending Team with the offer of a conditional caution. She did not engage and missed her appointment to return to the police station so, this morning, she was arrested, charged and brought to court.

From her point of view, she’s gone out, been stopped by two men who have stopped her, tied her up and then forced her to the floor. That’s not me excusing her actions, it’s me trying to summarise the situation from her point of view and put the assaults into context.

From the police’s point of view, they could not leave a vulnerable girl out on the street alone and drunk in the early hours of the morning. When it became necessary to arrest her they sought to divert her away from court but that was unsuccessful and so their choices were take no further action on the two assaults on police or charge her and take her to court. I cannot see what alternative the police had in this situation.

So, that’s how I came to be representing a vulnerable teenage girl who had been reported missing and ended up accused of two crimes for the first time in her life. At court, she pleaded guilty and was given a referral order – there was nothing else the court could do. The referral order essentially means she has to go back to the Youth Offending Team and work with them (so in her case it’s the same as the conditional caution she’s already failed to abide by).

To me, this highlights the unsuitability of the Criminal Justice System to solve social problems. Having spoken to this girl, she didn’t strike me as a criminal or as somebody who just likes getting into trouble – in fact she’s never been in trouble before in her life! What she is, is extremely vulnerable without her parents or family to care for her and support her. She’s a child looking for support from her peers, which in her case means friends who take her out and get her drunk. Emily likes to drink vodka with coke and does so a few times a week – is anybody else wondering how a girl living in a care home with no income can afford to buy bottles of vodka to get drunk multiple times a week? When I was 15, I could only dream of having the money to buy alcohol. Her explanation is that “friends give it to me”. If we’ve learnt anything from working on and reading about child exploitation cases, it’s that alcohol and drugs are rarely given free and gratis by well meaning “friends” who want nothing in return.

What we have is a Criminal Justice System that struggles to cope with the Emily’s of the world because that ain’t its job. The CJS was never designed to help vulnerable children escape a shitty life. It tries, but ultimately unless it convicts a child of a crime (thus giving them a criminal record) it can take no steps to help them. Of course, there is a further problem that if they do convict them, impose a referral order that the child refuses to comply with then the situation escalates in a way that is unlikely to fix anything.

What Emily and others like her need is an effective intervention system that prevents her getting to this stage in the first place. Better support for vulnerable kids, which includes having support in care homes and getting kids out of care homes and into real homes, whether those are their own or foster care or, better still, a stable loving home where they can form relationships with adults. That also means earlier intervention. I hate the idea of kids being taken away from their parents but the children’s needs must come first and if that means heartbreak for parents who cannot or will not provide the care a child needs then that’s something I can live with.

I know some people who are looking to adopt. From what I gather it’s a Hellish experience. They already have a child but the process for adoption seems insanely complex. Pretty much everyone they have regular contact with has been interviewed and checked out by social services – the social worker has even performed a risk assessment on the family cat… yes the fucking CAT by which I mean a small elderly domestic moggy. They don’t live in a zoo, they don’t have a tiger coming to tea eating all the food in the house and drinking all the water from the tap, it’s a normal everyday cat. I gather it was not a quick risk assessment either –words including “30-page form” have been used to describe it. From what I read online, the social worker will not only want to speak with your pets but will also want to go and meet your ex’s – how cheery will that conversation be I wonder? Clearly social services must make sure they are not placing kids with Josef Fritzl but at the same time I’m sure it’s possible to speed the process up, it’s not like there’s a shortage of kids needing a real home to call their own and provide a stable base for their life.

If it sounds like I’m criticising anybody in this post then you’ve read it wrong or I’ve written it wrong, either way, I’m not. Emily acted badly but there’s a lot of what us lawyer’s call personal mitigation wrapped up with the offence. The police acted in the only way they could both when they found her, when they arrested her and when they were forced to charge her. The court has done its best to help her, but ultimately, that’s the problem. The Criminal Justice System is there to punish criminals. It’s not there to help sort out the lives of lonely, vulnerable children. We need a system that can do that, something new and better. Something that works.

Got any ideas? Pop ‘em on a post card to Elizabeth Truss at the Ministry of Justice.

I don’t honestly fancy Emily’s chances of a Happy Christmas in 2016, but I hope she and you do have one.

Thursday, 15 December 2016

The importance of expert legal advice

Expert drink driving solicitor with his finger on the pulse of the law
Expert legal advice is essential any time you are interviewed by police

I met a new client last week. He is accused of drink driving and contacted me after hearing of me through others I've represented. He was arrested at home where the police found him in bed… asleep. He was not the only person in the house and was not the only person with access to the car he was accused of driving.

Having considered the evidence, I saw that the police received call from an “unknown informant” saying that somebody was drink driving. No reason for this belief was given nor was there any description of the driver. In short, there was no evidence that the man charged with the offence was the driver. Since the prosecution must prove not only that a person is over the drink driving limit but also that he drove while over the limit, evidence identifying the driver is very important.

At the police station, my client was interviewed in the presence of the duty solicitor – or at least an accredited rep acting on behalf of the solicitor – advised that the client make a full admission to driving after consuming alcohol. If you’ve not read it then I refer you to my recent post on advising suspects at the police station and my suggestion that a solicitor should advise a “no comment” interview unless there is a good reason to move from that position. I also suggest that solicitors consider a prepared statement followed by no comment to ensure that key points in a defence are put forward while remaining silent on everything else to test the strength of the prosecution evidence.

In this case, my client told me that his consultation with the solicitor lasted a few minutes and the advice given was, “they have a witness who saw you driving so you have to admit it”. This is surprising since the police account is that they do NOT have a witness to the driving. A simple question from the solicitor would have sorted this important point out, e.g. when the police say, “your client was seen driving.” The solicitor should be asking, “do you have a witness statement to that effect?” and, importantly, “will you be conducting ID procedures? If so, I need to know now so I can advise D about whether to take part or not.” Had these questions been asked the answer would have been either “no we don’t have a statement” or, “I’m not willing to answer that question”. The only answer to the ID procedures question can be, “no”. Had the police answered in any other way then the interview could be excluded at trial under section 76 of the Police and Criminal Evidence Act 1984 as being unfair since the police had lied to the solicitor to extract a confession. Given there seems to be no suggestion that the police lied, I can only conclude that the solicitor did not bother to ask any questions of the police.

In addition to throwing his hands up and not considering the advice properly, the solicitor did not spell out the importance of the client putting forward his post-driving alcohol consumption in the interview. The police did not ask whether he had anything to drink after driving and so neither did the client. This was a situation crying out for a “no comment” or prepared statement interview.

Had the solicitor advised no comment, the police would have been left with no evidence of driving since their anonymous informant did not describe the person he or she saw and could not take part in any ID procedures since the police have no idea who he or she is. Without any evidence of driving there would have been only one outcome: no further action and release without charge.

Even if the client had insisted on telling the police he had driven after drinking then the solicitor should have insisted that he put forward his post-driving alcohol consumption (this is commonly known as the hip-flask defence) either by reminding him to tell the police at the end of the interview or by drafting a prepared statement. While this probably would not have avoiding a charge being brought it would have set out his defence from the beginning and strengthened any account he gives at court.

I do not know why this solicitor did not effectively question the police and why he decided to ignore the sensible approach of answering no comment unless there is a good reason to move from that position but I can speculate. In my experience people accused of drink driving face three problems. First, there is a tendency to treat drink driving as not a very serious offence and so not to give it as much thought as you would a murder. I get that, from a solicitor’s point of view a drink driving is not as serious an offence as a murder. But, from a client’s point of view it is very serious to them and they deserve the benefit of knowledgeable and considered legal advice as much as anybody else. Secondly, I meet a lot of criminal law solicitors who will happily admit that they don’t understand motoring offences fully and don’t like them. When you don’t like something you tend not to spend much time learning about it and so if you find yourself giving legal advice you risk missing defences. We saw this happening in the case of R v Mohammed & Others, where solicitors were criticised by the Court of Appeal for not knowing about the availability of a statutory defence – that was an Identity Cards Act case but it happens in drink driving law too. Thirdly, when police station agents are being paid £50 to £90 per attend there is an incentive to wrap up each case as quickly as possible so they can get on to the next job.

As I say, I do not yet know what prompted the advice this chap was given but what I do know is that had he been given the correct advice to answer “no comment” then he would not now be facing a charge at court. If you ever doubted the importance of expert legal advice in the police station, I hope I’ve cleared up why it is so important.

Thursday, 8 December 2016

To speak, or not to speak: that is the question

To answer or not to answer questions is a difficult decision
As a solicitor who specialises in drink driving law I don't get to the police station very often but nonetheless I was recently asked on Twitter whether I thought the advice printed on the top of a legal rep’s note papers, "Every police station, every day, NO COMMENT" was good advice or not. A few police officers have said over the years that they cannot understand why anybody would go “no comment” in interview as, from their point of view, no comment will ultimately result in a charge.

First, I should make clear that "Every police station, every day, NO COMMENT" was probably not intended as advice. It is the slogan of a legal rep service called “NO COMMENT” and I suspect that this rep was working for them.

You may not know but there is a thriving business in police station representative work. Solicitors are often unable to attend the police station personally, this may be because they are in court, in meetings or attending another police station when the police are ready to begin the interview. So, many will turn to rep agencies, who will dispatch someone to look after the solicitor’s client. It may not be obvious to the police or client that this is what has happened. The rep may be a police station rep, a solicitor or a duty solicitor.

When the solicitor (I’m going to say solicitor because I can only talk about me and I am a solicitor) gets to the police station he needs to advise the suspect on the law, evidence as disclosed by the police and whether the suspect should answer questions in interview.

There are five options for the interview:

1.       Answer questions;

2.       Don’t answer questions;

3.       Put forward a prepared statement and then answer questions;

4.       Put forward a prepared statement and then answer no comment; and

5.       Answer some questions but not others.

In my opinion, option 5 is the worst possible approach to take and a client should never be told to do this because it will look like he is trying to avoid questions to which he has no answer, which everyone will assume is because he’s guilty! I also see little point in option 3, and I’ll explain why in a moment.

Before giving advice, a solicitor should recognise that a conviction in court does not rest upon your client being innocent or guilty. It rests upon whether sufficient evidence can be brought to bear that convinces a magistrate or jury that he is guilty. When considering what advice to give, a solicitor should always be asking “how will this approach look to a jury in six months’ time?” Many clients worry about how their approach will look to the police officer sitting in front of them but, with respect to any police officers reading this, that is the wrong way to look at the problem. If the police have sufficient evidence to charge they will do. If they don’t they won’t. While a police officer may not like you personally, it doesn’t change the test that must be applied when reaching a charging decision.

“No comment”

My view is that you should take a starting point that you will advise a “no comment” interview and only deviate from that position where there are good reasons to do so.

The benefit of a no comment interview is that you cannot add to the evidence against you. True a future judge may tell the jury that they can draw a proper inference from your silence but as my criminal advocacy tutor at Bar School said, “if you can’t deal with an adverse inference then you shouldn’t be practising in the criminal courts!” On the flip side, I’ve seen many people end up in court (and even in prison) because they said something in interview that the police would not have been able to prove but for their confession.

As well as not increasing the evidence against you, remaining silent will force the police to show their hand. This is particularly useful in serious cases where the police are likely to have withheld some elements of disclosure from the solicitor or may be following a staged disclosure protocol where the interview is stopped every so often for more evidence to be revealed. Withholding evidence is also a tactic employed where the evidence against a suspect is weak. In one case I dealt with the police disclosure was that the believed my client to be a suspect in a robbery because his DNA was found at the scene. They refused to reveal the location of the robbery or the nature of the DNA! We remained silent until the police were forced to reveal that the robbery took place outside the block of flats in which the suspect lived and the DNA match was to a used cigarette found by a dustbin at the entrance to the flats. Clearly answering questions would only have bolstered the police’s evidence, particularly as the client was guilty which we found out when he decided to confess against my legal advice.

In another case, a husband was accused of assaulting his wife causing bruising to her face. The police disclosed that other family members had already given an account saying that there had been no assault and that the “bruising” was in face a skin condition the wife had had for many years. The client remained silent since he could not improve the account in his favour and was released without charge upon conclusion of the interview.

Once you have heard the police set out their stall during the interview you can always decide to issue a prepared statement after the interview. I know police officers hate that and often make a big show of claiming your client has had his opportunity to give his account but, let me be blunt, if they ignore a piece of evidence because they don’t like the timing of it then they are likely to be guilty of professional misconduct and risk jeopardising their entire investigation if a judge hears that they ignored evidence. You can also put the statement as an answer to the charge should the client be charged.

Giving your account

Full comment interviews

Answering all questions has the benefit of putting forward your account early, which may make what you say more credible to a jury. Although, if you later recall something or it emerges you have missed something out then you can expect to be attacked about your change of story by the prosecution at trial. This can be a problem when events happened some time ago or in the heat of the moment when your recollection may not be perfect.

I once went to a police interview of a mobile phone shop worker accused of fraud where the police proposed to ask questions about several hundred mobile phone contracts he had sold over the previous couple of years. The idea of him being able to answer those sorts of questions accurately is ridiculous and the case is a good example of when answering questions might lead you to say something that can later be proven incorrect. He went no comment.

Giving your account avoids the risk of an inference against your client being drawn (unless of course he is caught out lying, which would be much worse for him) and it allows him to raise defences that are then for the Crown to disprove.

Prepared statements

Prepared statements might just be the most useful tool at a solicitors’ disposal in the police station. I’ve already said that answering some questions and remaining silent on others is a terrible idea, but a good prepared statement allows you to do just that. Prior to interview the police should give the solicitor disclosure about the evidence they have and what they plan to interview about. A solicitor can then use that to craft a prepared statement that deals with the issues raised in disclosure while brushing over any points that might be difficult for the client to handle. A well drafted prepared statement can avoid an inference being drawn at court, show the jury that your client has been telling the same story from the beginning and avoid difficult questions.

I have heard of some people giving a prepared statement then answering questions. I cannot see the point of that approach since anything helpful you put in the statement can still be undone by poor answers to questions.

In addition to situations where a client does not wish to divulge all he knows to the police but does wish to give some information, prepared statements can be useful where your client is not up to being interviewed. You’ll often come across people who will not be able to stand up to even gentle questioning and are likely to do more harm than good. In those situations, a prepared statement is often the answer.

When there is sufficient evidence to convict and your client admits guilty then giving an account is the only way to divert a case away from prosecution and towards an alternative disposal such as a caution or reprimand. That is the one exception to my rule of asking yourself how an interview will look to a jury in six-months’ time. I always sound out an officer about the possibility of diverting a case away from court prior to speaking with my client. Although the stock response is that any diversion must be authorised by another officer, most officers will tell you whether they think such an outcome is likely and whether they would be willing to recommend it to their superior.

In conclusion, my view is that unless there is a positive reason for answering questions or giving a prepared statement in a police interview you should be advising your client to remain silent.

Wednesday, 7 December 2016

Let unqualified law graduates defence the poor says judge

Sir Terence Etherton, Master of the Rolls
If you don’t know, the Master of the Rolls is a senior judge, in fact it is the second most senior judge in England and Wales. Before becoming Master of the Rolls any office holder will have had a career as either a barrister or solicitor (though let’s be honest there’s not been a solicitor appointed to the role so far but the office has only existed since the 2nd September 1286 so there’s not been much time to appoint a non-barrister I suppose).

The current incumbent is Sir Terence Etherton who has completed almost two months in post and is already proposing the sort of dotty ideas that are best left to politicians.

There seems little doubt that the British justice system is, to use a technical legal term that you may not all understand, fucked. There has been years of under investment by successive governments in every possible area from the buildings through the judges and down to the lawyers that appear before them. The buildings are collapsing, the judges are suing the government over cuts to their pensions, which makes it harder to recruit new judges leaving posts unfilled and cuts to legal aid has left legal advice desserts across the country where poor people simply cannot get legal help. The article highlights housing law problems but the same problems exist in other areas of law including my own area, motoring law, where legal aid is usually not available even though for many people losing their driving licence will mean losing their job and their home.

To resolve the last of those problems (or at least pop a sticking plaster over the problem), the Master of the Rolls has suggested that the unrepresented – by which he really means “the poor” because usually the well-off will pay somebody like me to represent them privately where legal aid is unavailable – should be represented in court by law graduates who have not completed their training to entitle them to practice as solicitors, barristers or legal executives.

He is very clear that this assistance would not be merely in the form of giving advice and helping litigants in person to prepare documents but would include conducting advocacy before the courts. That is something McKenzie Friends can already do despite MF’s often having no legal training or experience.

On a side note, it’s worth saying that given the constant criticism of solicitor advocates by the Bar, claiming solicitors provide unacceptably poor advocacy, it is surprising, to say the least, to find a senior barrister turned judge calling for wholly unqualified people to be allowed to represent people in courts.

Leaving that point aside for a moment, let us ask ourselves what are the consequences of this going ahead?

First, if the courts and Parliament accept that it is appropriate to have people who have not undertaken any professional training conducting advocacy and litigating then we must question what is the necessity of solicitors undertaking the Legal Practice Course followed by two-years on the job training and barristers completing the Bar Professional Training Course following by 12 months of pupillage? Of course, the answer is that it is only following training that prospective lawyers are able to apply for and obtain practising certificates to practice the law because it is only at that stage that a person has been tested and found competent to do so. But, if that level of competence is now to be deemed irrelevant then why should fresh young law graduates spent up to £20,000 completing the professional stage of training?

Holding a practicing certificate is a very important requirement that enables a lawyer to obtain insurance indemnifying them against their own negligence. While insurance sounds frightfully boring, it is very important because if you want to make a claim against your solicitor or barrister you’ll find it is futile if he has insufficient funds with which to pay you, which is where insurance comes in – it’s there to protect you, the consumer not the lawyer!

Upon qualification as a solicitor, one cannot simply set up a firm and start recruiting clients. Before a solicitor can practice on his own account he or she must have three years’ post qualification experience. That means that for the first three years of practice a solicitor must be supervised by a more senior lawyer – that is on top of the two-year training contract, which means that solicitors will have five years of close supervision before being allowed to take cases without the safety net of a supervisor looking over their shoulder. The requirements for barristers are slightly laxer but nonetheless they must be supervised for a period and both branches of the profession are required to undertake new practitioner training after they qualify.

Compare this with a law graduate who has spent three or four years studying the law and absolutely no time studying legal practice or how the law is applied by the courts on a daily basis. Experience has taught me that the academic study of the law breaks down very quickly when faced with a short-tempered judge stuck in a busy Monday morning list.

Sir Terrance suggest that these problems can be overcome by the graduates offering their services through law centres or university advice centres where they can be supervised by staff or pro bono lawyers and covered by the centres insurance policy. I write this with all the respect I can muster, but that is clearly insufficient. The Solicitors Regulation Authority requires offices to be properly supervised on a full-time basis by a solicitor qualified to supervise staff. A member of university staff or a part time volunteer is unlikely to be able to offer the level of supervision necessary to be a proper supervisor.

Did you know that a learner motorcyclist accused of careless driving would not be judged by a lower standard of driving than a fully qualified driver with 50 years’ experience? You can be confident than an unqualified advocate could not successfully argue that as they are unqualified they should not be held to the same standards as a qualified advocate if they were to be sued. Now put yourself in the position of an insurer asked to accept the risk of an unqualified advocate who is only going to be supervised when the pro bono supervisor is free to pop in and see what’s happening. How quickly would you turn down that application if it were your money on the line?

The Master of the Rolls said that these unqualified advocates would “… be subject to professional regulation…”. That’s an interesting point, but how would it work in practice? Sir Terrance may wish to consult s.12 of the Legal Services Act 2007, which tells us that exercising a right of audience (representing somebody in court) and conducting litigation are reserved activities. Section 14 of that Act makes it an offence to carry out a reserved activity when not entitled to do so. Entitlement comes from holding a practicing certificate as either a solicitor or barrister. The Bar Standards Board goes to great lengths to spell out that unregistered barristers must not carry out reserved activities and it’s worth saying that an unregistered barrister is anybody who has been Called to the Bar but who does not hold a current practicing certificate, which still puts them a step above law graduates who have not even been Called to the Bar!

So, the Master of the Roll’s plan would require legislation to prevent these unqualified graduates from committing a criminal offence when they undertake these cases. Is an Act of Parliament designed to water down the strict rules on who can appear in court really in the public’s interest? I’ll let you decide that question for yourself.

Recently, and for the first time in my career, I withdrew from representing a client at his trial because the Crown served almost their entire case just 20 minutes before the start of the trial and the magistrates refused to allow me any time at all to read the papers and take instructions. I could not properly represent my client; I could not meet my professional obligations so I withdrew altogether. A barrister criticised me saying, “you could have done a better job than him so why withdraw?” But that misses an important point. The test is not “can an advocate do a better job than the litigant in person” the test is “if I do this, can I do it to the very high level expected of me by myself and my professional regulator”. Where I haven’t read the evidence or taken instructions the answer to that question can only be, “no”. Equally, is somebody who has no professional qualifications, training or experience likely to meet the very high standards expected of them by the public and regulators? I would suggest that most people are not going to be able to do it. That’s not me having a dig at law graduates but it’s a fact that it’s only after a lot of intense training and practical experience that junior lawyers are let loose in court and for very good reason.

Before I move on, I want to put this point into context. Imagine you need a heart bypass. There are no heart surgeons or anaesthetists available but you can get the surgery done on the cheap by a couple of lads who just finished medical school but have no experience of surgery, although they do have a good general idea of how the body works. Are you going to get that surgery? Now imagine you are a father being denied access to your children. You cannot afford a lawyer but you can have a law graduate who will represent you. The consequences of a mistake in the first situation may be death, in the second it may mean you never see your children again. Is that really the way you’d like to be operated on or represented in court? Mistakes by surgeons or lawyers have the potential to change your life forever.

Let’s ask ourselves another question at this point: what is the problem that this idea is combating? The problem, I suggest, is a lack of legal aid for the poor and a lack of affordable legal advice for those in the middle-income bracket. Busing in a bunch of unqualified law graduates does not solve either of these problems, at best it is a sticking plaster applied to an amputated arm that undermines the training given to qualified lawyers and will ultimately drive down the quality of advocacy and litigation in the lower courts – because let’s not pretend for a moment that Sir Terrance is suggesting his own court be flooded with unqualified advocates.

It's also bad news if you happen to be a law student because I guarantee that a few years after this scheme comes in you’ll see the top tier law firms expecting students to undertake a year of free advocacy before beginning their training contracts, which means another year before you qualify. How do I know this? Because we already see firms expecting candidates to have completed an internship prior to applying for a training contract.

There is a trend showing itself at the moment and that is that it is okay for poor people to have substandard representation. Funnily enough, nobody expects the likes of Tesco to begin employing unqualified advocate to represent them in the High Court. Lord Westminster is not about to start hiring fresh from uni graduates to tend to his huge property empire and the Government is not going to summon a recent law graduate to argue the big cases of the day. This is a proposal that creates a two-tier justice system where wealthy individuals, corporations and government are represented by properly qualified lawyers and the poor are represented by whoever can be found to stand in front of a judge for them.

What else could be done to address this problem? My first suggestion is that judges tackle the government about their wholly inadequate legal aid provision. For years, governments have slowly stripped away ordinary people’s ability to go to law and defend their rights. Only lawyers have spoken up and overwhelmingly we have not been listened to by the public or government. Before you cry “fat cat” at me and imagine I’m just looking to line my own pockets, please stop and remember that I do not do legal aid work and probably could not make a living from what I do now if legal aid provision was what it was when I qualified.

But, if you accept the (probably correct) position that government simply doesn’t care whether ordinary people can access justice then you must look to other solutions. I would suggest the foundation of a network of charitable advice centres staffed by lawyers with support from non-qualified staff. These could charge on a sliding scale according to ability to pay with those in most need receiving free assistance. Clearly this reflects the existing law centres but I note that these seem more geared towards welfare, housing and debt and not many are able to assist with family law, for example. There are also huge gaps in the Law Centres Network with none west of Bristol in either England or Wales and none east of London all the way up to Newcastle!

In conclusion, the Master of the Roll’s suggestion is flawed legally, practically and ethically. It simultaneously undermines high quality representation, places litigants at a disadvantage when facing wealthier opposition and will create a two-tier justice system with those at the bottom at real risk of losing out.

Successive governments have undermined our once world-class justice system and have brought it to its knees. It is not the place of courts, judges or lawyers to help the government continue to do this. The scheme proposed by the Master of the Rolls plays into the hands of government by giving them yet another excuse to reduce funding for legal aid because there is a scheme that gives the appearance of access to justice for those who cannot afford a lawyer even though the scheme itself risks causing as much injustice as it seeks to prevent.

Friday, 2 December 2016

Lord Howard convicted of a driving offence

Lady and Lord Howard
At Wimbledon Magistrates’ Court on the 1st December 2016, Lord Howard was convicted of failing to identify the driver of a car belonging to him, which was seen speeding. Lord Howard is a Queens Counsel and former leader of the Conservative Party. He served as Home Secretary under John Major and frequently clashed with judges. One decision made by Lord Howard to set a minimum 15-year tariff to the life sentence imposed on the 10-year-old killers of James Bulger was described by a retired senior appeal judge, Lord Donaldson, as “institutionalised vengeance by a politician playing to the gallery”.

The former party leader’s car was seen travelling at 37mph on a road with a 30mph speed limit. A section 172 notice was sent to his home, presumably with a notice of intended prosecution, and Lord Howard replied saying he could not recall who was driving. He identified the other person who might have been behind the wheel simply as “my wife”.

The law

Section 172 of the Road Traffic Act is a well-known provision and many drivers will have received a “section 172 notice” requiring them to name the driver on a particular day and time. The Act requires the keeper of the vehicle to “give such information as to the identity of the driver as he may be required to give by” the police. It also requires “any other person” to provide “any information which it is in power to give and may lead to the identification of the driver.” They are most commonly sent out for speeding offences, but are occasionally used by astute police officers to side-step suspects in drink driving cases who decide to remain silent so as not to identify themselves as the driver. If the police cannot prove a person was driving, they cannot secure a conviction for drink driving. Often, the only evidence of driving comes from comments made by suspects themselves, therefore a refusal to answer questions can throw a prosecution into doubt. Officers will sometimes issue a s. 172 notice to force the person to disclose whether they were driving or not. Since the offence carries a discretionary disqualification, a court could decide to disqualify the person if they refuse to comply often making it pointless to exercise the right to silence in interview.

Failure to comply with a s. 172 notice carries a fine of up to £1,000 plus six-penalty-points. Like most driving offences, the court can always choose to impose a disqualification if they feel one is justified.

Section 172(4) of the Road Traffic Act 1988 tells us that a driver is not guilty if “… he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was”. It should be noted that “reasonable diligence” is a much stricter test than simply having a think about it then throwing your hands up in despair and saying “this is impossible”. It is necessary to make an effort to discover the information if you do not know it. In Marshall v CPS, the Divisional Court suggested that drivers who cannot remember which of the husband or wife was driving should go through the chronology and manner of the driving on the night in question to work out the answer. Mr Justice Parker in that case suggested that Mrs Marshall and her husband may have worked out who was driving thus:

“… The following questions could have diligently explored: at what time did she leave 16 Sloane Street, arrive at Nevern Place and return to Sloane Street to leave for Richmond? The distance from Sloane Street westward along the Cromwell Road to Kenway Road can be ascertained and the duration of the relatively short journey at night reasonably estimated.

42. On the first working assumption that she herself had been driving at the time of the alleged offence she could have sought to work out the approximate time that she must have left 16 Sloane Street, reached Nevern Place close to Kenway Road and then returned to Sloane Street to leave for Richmond.

43. If, on the other hand, Mr Marshall had been driving at the time of the offence the relevant chronologically, whatever it might exactly have been, must have been significantly different. Mr Marshall must on that working assumption have left Sloane Street on the first occasion considerably earlier, allowing her initially to drive Adele to Nevern Place, drop Adele off at the residence, return to Sloane Street to collect Mr Marshall before setting off on the final journey to Richmond. The final journey to Richmond must then have been considerably earlier.”

What I think His Lordship is trying to say is that when you think about who was driving you need to do more than just think about it, but actually take some steps to try and piece together the information and work out the answer based on the facts you do know.

The facts

Lord Howard told the court that he had been away on holiday with his wife when the notice arrived so he did not receive it until three-weeks after the alleged speeding offence. By that time the events were no longer fresh in Lord Howard’s memory and he told the court, “I tried as hard as I could to remember who was driving. It was almost a month before. I simply couldn't remember.”

Upon receiving the section 172 notice, Lord Howard did respond telling the police that it could have been him or his wife who was driving but that he had no idea which of them was behind the wheel at the time of the speeding offence.

District Judge Barnes told Lord Howard that this wasn’t good enough saying that, [a]t no stage did the defendant provide the particulars of his wife in his letter. To simply refer to his 'wife' does not provide sufficient information.”

After hearing evidence from both Lord and Lady Howard, DJ Barnes concluded that their evidence had been “credible”, which is judge for “the witness is probably telling the truth”. The DJ convicted him anyway saying, [t]he defendant did speak to his wife to try and remember who was driving. They did rack their brains… At no stage did the defendant provide the particulars of his wife in his letter. To simply refer to his 'wife' does not provide sufficient information… The reasonable diligence has not been made out and I'm not in a position to give any credit since there was no plea of guilty."

Given the judge’s use of the phrase “They did rack their brains,” I would suggest that she felt the Howard’s had done all that could be asked of them to remember, as per Marshall v CPS, and that they genuinely did not know who was driving. It would appear then that the conviction is on the technical basis that Lord Howard did not give the name and address of his wife when completing the form.

Lord Howard has said that he intends to appeal the conviction. He may choose to go to the Crown Court for a complete rehearing or to case state the district judge to clarify whether the information he provided was sufficient or not.

I would question whether the words, “my wife” are insufficient. Lord Howard is married to only one person, a woman named Sandra Howard, so those two words can relate to only one person in the entire world; had he written “Sandra Howard” how would we know if he meant his wife or the Vice Minister of Tourism in Colombia, for example?

There is also an argument to be had as to whether Lord Howard should be convicted of failing to name the driver when it is accepted that he did not know who the driver was. The purpose of section 172 is to give the police a way of tracing drivers and to that end it punishes those withholding information from the police. Section 172(4), gives a defence because Parliament recognises that it would be unjust to convict people who genuinely cannot provide the required information. In those circumstances, it seems unjust to convict somebody for failing to spell out the name of his wife when the court is already aware that the lady in question does not have the information sought by the police and has, in fact, come to court to give evidence.

Thursday, 1 December 2016

Drink driving in UK versus Norway: Drink driving limits

Drink driving limits vary not only between countries
but also between the various parts of the UK
In part 3 of this four-part series comparing the drink driving law in Norway with that here in the UK following the driving conviction of Halfords finance director, Jonny Mason, we turn our attention to the question of the drink driving limit. In other words, how much alcohol can you have in your system and still be allowed to drive?

In Part 1 we looked at whether a golf buggy could be a motor vehicle here in the UK and concluded that it could not unless it was modified. In Part 2 we considered whether a person could commit a drink driving offence on a private golf resort and concluded that while it is possible, it seems unlikely that drink driving on this resort (if it were in the UK) would be a crime. Now, we ask whether Mr Mason would have committed a crime if he had driven a car on a road with the amount of alcohol in his system that he had in Norway.

Throughout these posts, I’ve referred to “UK law”. That’s a bit misleading because English and Welsh law is different to Scottish law, but the drink driving law applies equally to both except in one important respect: the drink driving limit. In Scotland, the limit is 50 mg of alcohol per 100 ml of blood (22 mg per 100 ml of breath). In England and Wales, the limit is 80 mg of alcohol per 100 ml of blood (35 mg per 100ml of breath).

As a child, I was told various things about how much you can drink before you drive (interestingly I don’t recall ever being told not to drink anything before driving until I was much older). The (mis)information I remember most clearly was that you can drink two or three pints of beer before driving. Two pints was the most often cited figure, but I do remember going to the pub with my science teacher who was about to drive home when we finished drinking insisting that three pints was completely safe and would not put anybody over the limit! He was a biologist by training and should have known better. I was also told that eating before drinking will reduce the alcohol level.

In fact, the amount of alcohol you can consume before reaching the drink driving limit varies from person to person and eating food will have no effect on you blood-alcohol level. Food may make you feel less intoxicated but it does nothing to alter the amount of alcohol entering your body and thus the reading you’ll provide should the police ever test you.

Generally speaking, men can consume more alcohol than a woman and fatter people can consume more than muscular people without exceeding the drink driving limit. This is because the alcohol level in your body is a function of the amount of water in your body and fat contains more water than muscle. While you can estimate the amount of alcohol you can consume you cannot be accurate, which is why the best advice is not to drink any alcohol if you plan to drive.

So, what was Mr Mason’s alcohol level? None of the reports I have read set out his alcohol level, but we can estimate it because the reports do say he was double the drink driving limit. In England that would mean he had around 160 mg in 100 ml of blood. But, a little research reveals that the drink driving limit in Norway is much lower. There the limit is 20 mg of alcohol in 100 ml of blood. That means that double the limit is 40 mgs.

At 40 mg of alcohol in 100 ml of blood, Mr Mason would NOT have exceeded the drink driving limit in England and Wales nor even the lower limit in Scotland. So, had he driven a car (not a golf buggy) on a road (not a private golf resort) he would not have been committing an offence anywhere in the UK.

In the final part, we will pretend that the prosecution could secure a conviction and look at what sentence would be imposed.

Tuesday, 29 November 2016

Drink driving in UK versus Norway: when is a road not a road?

Kragero Golf Resort

This post is part of a short series of blogs inspired by the conviction of Halfords Finance Director, Jonny Mason, for drink driving in Norway. In the last post, we looked at whether the golf buggy he was driving at the time of his arrest could be a motor vehicle here in the UK. In this post, we’ll consider how our law differs from Norway’s on the place of the offence.

Mr Mason was staying in a golf resort. According to the press, he decided to drive a golf buggy from a bar to his holiday apartment. It is said that at no time did he travel beyond 10KPH or 6MPH.

In the UK, drink driving is only a crime when committed in a public place or on a road, but the legal definition of a road is much narrower than you might imagine. If you drink drive in a private place or on a road that does not meet the legal definition of a road then you will be not guilty, so it’s important that you (and your solicitor) knows the difference.

To decide whether Mr Mason’s actions could have been a crime here in the UK, we must ask ourselves whether the golf resort he was driving through is a road or public place as the Road Traffic Act 1988 only applies to those places and thus no offence is committed if you are not on a road or in a public place.

What is a road? The Road Traffic Act tells us that a road is, “any highway and any other road to which the public has access and includes bridges over which a road passes”. When I was a school child I was taught that it is wrong to define a word by using the word itself; I think it’s fair to say that the MPs who gave us this description went to a different school! In any event, we’re stuck with it so we’ll carry on as best we can. Barrett v DPP provided a much more helpful definition of a road when they said that the defendant had, “followed a route between points which was tarmacadam with defined edges, road marking and signs; that the roadway was used by members of the public, including those who had no other business within the caravan park, as a through route to the beach”.

Clarke v Kato, agreed with Barrett and went on to tell us that each case will turn on the particular character of the area in question and that a road should normally lead from one place to another. This was followed in Brewer v DPP where the car park did contain a route through it but only from the public car park into a staff only car park and the court decided that was not sufficient to make the car park a road for the purposes of drink driving law.

Roads are part tarmac part grass with no road signs visible
In Alun Griffiths (Contractors) Ltd v Driver and Vehicle Licensing Agency, the court also considered whether the area in question was maintained at public expense and found in that case that part of the reason the area was a road was because the taxpayer paid to maintain it. That cannot be a definitive piece of evidence though because the Act also says that the road must be one “to which the public has access”. A road inside a military base may be maintained at public expense, have a tarmac surface with defined edges, road marking and signs but if the public do not have legal access to it then it is not a road for the purposes of drink driving law.

Being the sort of sad chap I am with too much curiosity and access to Google, I have taken a look at photographs of the golf resort in question and studied the satellite images so am happy to say that there are some narrow tarmac roads with defined edges, although not all roads meet this description. There are no obvious road signs in the photographs. There appear to be barriers preventing access to non-guests.

Therefore, in answering the question does the golf resort contain roads that it would be illegal to drink and drive upon here in the UK, we can give a confident answer of ‘no’. This is because, although much of it appears to be made of tarmac with clear edges there are no road signs and there is no route through the golf resort from one place to another. While we do not know who maintains the road system, I would suggest that in the UK the local authority would be unlikely to pay for the upkeep of a road network contained wholly within a private golf resort. The presence of barriers also suggest that the resorts roads are open only to a subset of the general public, i.e. people working at or staying at the resort, and not to the public at large.

For the same reason, we can conclude that the resort is not a public place because members of the public who are not resort guests or staff have no right to enter or be on the land. It is thus a private place not a public one.

We can therefore say that had Mr Mason driven his golf buggy after drinking so much alcohol that the proportion of it in his breath was above the drink driving limit here in the UK, he would not have been committing a criminal offence and would have been found not guilty by the court.

Saturday, 26 November 2016

Halfords boss imprisoned for drink driving in Norway: is it a crime in the UK?

Would Jonny Mason's actions count as drink driving in the UK?

I read recently that Halfords finance director, Jonny Mason, has been arrested, charged and convicted for drink driving in Norway where he was found to be driving at twice the Norwegian drink driving limit.

Because I am a criminal law solicitor who specialises in offences involving motor vehicles and alcohol, I take a particular interest when I see a story about drink driving and, while you may find it difficult to understand, for me his case is very interesting because it raises several questions about English law. So, in this and the next few posts I will be looking at those points and discussing the position in England compared to that abroad.

In this post, we’ll be asking “what counts as a motor vehicle so far as drink driving law is concerned?”

Mr Mason was found to have driven a golf buggy at no more than 6MPH when returning from a bar to his holiday apartment. When we think of drink driving most people think of cars, motorcycles, vans and so on, not golf buggies. So, is a golf buggy a motor vehicle?

Section 185 of the Road Traffic Act tells us that “motor vehicle” means “a mechanically propelled vehicle intended or adapted for use on roads”. Having conducted some internet research, it seems that golf buggies are not usually intended for use on roads, although some can be adapted for such use on a limited basis. This must be correct since golf buggies are not normally fitted with safety equipment, such as seat belts, headlights and so on that is required to drive a vehicle on the road.

Some people have suggested to me that if something needs road tax (or Vehicle Excise Duty) then it must be a motor vehicle; however, this is incorrect. VED is governed by the Vehicle Excise and Registration Act 1994, which defines vehicles having to pay road tax as “mechanically propelled vehicles” and there is no requirement for a vehicle to have been “intended or adapted for use on a road” for it to need road tax. Therefore, we can say that a vehicle may be subject to VED even though it is not a motor vehicle for the purposes of drink driving offences.

So, what we know is that to be guilty of drink driving you must be driving a motor vehicle. We also know that a motor vehicle is one that is intended to be used on the road, or one that has been adapted for such use. That must mean that a vehicle, at the time it is built or adapted, complies with the various rules on construction, design and safety for it to be on the road. A golf buggy will not normally meet these very strict rules and so cannot be said to be intended or adapted for use on the road. Therefore, it cannot be possible to commit an offence of drink driving while driving an unadapted golf buggy.

Thus, we can say that had Mr Mason been driving his golf buggy here in the UK he would not have been guilty of drink driving.

Because I know readers of this blog are all astute, intelligent and good looking individuals I know that you are all screaming, “what about the Licensing Act 1872, section 12?” And, you all have a very good point. Section 12 of the 1872 Act criminalises people who are drunk in charge of cattle, horses, steam trains and carriages. Clearly our golf buggy is not a cow, horse or a choo-choo, but is it a “carriage”? At first glance, the answer must be a resounding “no”. Carriages are great big things drawn by horses and used by the Queen and Lord Mayor of London to tootle around town, aren’t they? Well that was (more or less) the argument employed by Mr Taylor when he appealed his conviction under section 12 for being drunk in charge of his bicycle in 1879 in the case of Taylor v Goodwin. In that case, Mellow, J. gave judgment saying:

“I think the word ‘carriage’ is large enough to include a machine such as a bicycle which carries the person who gets upon it, and I think that such person may be said to ‘drive’ it. He guides as well as propels it, and may be said to drive it as an engine driver is said to drive an engine.”

To my mind that definition must encompass a golf buggy as well as a bicycle. So we now know that a bicycle, golf buggy and the Queen's carriage are all basically the same thing if you’re a judge.

Taylor was followed by the Divisional Court in the 1950 case of Corkery v Carpenter and again 2011 in Coates v Crown Prosecution Service when Mr Coates’ Segway was held to be a carriage after he was found driving it on the footpath, contrary to section 72 of the Highway Act 1835 (who said Victorians weren’t a forward-thinking bunch?).

So, we now know that had Mr Mason been charged in the UK, while he could not have been convicted of drink driving, he may have been liable for being drunk in charge of a carriage.

In the next part, we’ll look at private land versus a road or public place and see whether the prosecution could have won against Mr Mason had he been charged in the UK rather than Norway.

Tuesday, 22 November 2016

Passport checks before you get NHS treatment

Charlie Elphicke, the Tory MP for Dover, and officials in the Department for Health have been mooting the idea of nationwide identity checks for patients before they receive NHS treatment in the UK.

On the face of it, the reasoning behind this is the scourge of “health tourism” that plagues the pages of outraged tabloid newspapers and right wing broadsheets. In April 2016, the Telegraph reported in an article entitled, Health tourists cost UK taxpayers £6billion in eight years that “Britain has lost more than £6billion in the past eight years treating foreigners from the European Union in UK hospitals”.

But, what do we mean by health tourism? My definition is people who come to the UK specifically to receive medical treatment for free on the NHS. I, and I think most people, would not include a Frenchman who visits the UK and is hit by a car while here as a health tourist. If you accept that definition then the Telegraph’s claim is nonsense.

Full Fact tells us that people coming to the UK to take advantage of the NHS costs the UK taxpayer between £110M and £280M per year. So over an eight year period and using the higher figure for all 8 years, the most health tourism could have cost the UK is £2.24bn – a full £3.76bn less than the Telegraph claimed. Of that £110M to £280M figure, £60M - £80M is foreigners while the majority are British ex pats returning to the UK for free treatment to which they are no longer entitled – this figure is thought to be between £50M and £200M!

Just to put these figures in perspective, the UK Parliament is about to spend £7bn refurbishing their office building in Westminster and up to £41bn replacing the submarines that carry trident nuclear missiles (that figure doesn’t even include the missiles themselves by the way)! The current NHS budget is £101.3bn so health tourism each year accounts for between 0.1% and 0.2% of the annual budget. When you take out the British ex pats, health tourism accounts for between 0.05% and 0.07% of the budget.

The Telegraph article doesn’t tell us how they reached their £6bn figure and I cannot make the figures I’ve found add up to that number. But what they do tell us is that the UK paid £6.2bn to other EU states for treatment of UK citizens by their health services.

The Daily Mail tells us that the NHS received £1.5M from the Polish government to cover care for its citizens in the UK but paid out £4.3m to Poland for treatment of British nationals. This may be because the Brits in Poland are often young and drunk (been there, don’t that) while the Poles here are generally living here rather than on a holiday to party. But, more likely it is because the NHS simply doesn’t take effective steps to collect the money that it is owed. From what I am told by NHS employees this is the case even where it is known that somebody is from another member state and is because the staff have no real training on what to do and there is little structure in place to refer overseas nationals either for private billing or for treatment costs to be recovered.

According to Full Fact, the NHS spends about £1.8bn each year treating overseas nationals who end up being treated here because something unexpected happens, e.g. because they are run over, as opposed to people who visit the UK deliberately to access free health care. Of this £1.8bn just £100M is recovered.

So, we must ask ourselves what impact would nationwide ID checking have on the NHS and its budget? The answer is: practically none. Stopping the people who come here deliberately to access expensive medical treatment for free would save the NHS about half of one percent of its annual budget. To put that in perspective, the Office for National Statistics tells me that as of 22nd November 2016 the average weekly wage is £505 so is the NHS were a person earning the average wage then that 0.05% represents £2.52, or less than the cost of a pint of beer (in London anyway)!

How would ID checks work? Anybody can obtain a driving licence so they are no good to prove you are entitled to NHS care. Passports have been mooted but not everybody has them and, as we’ve seen, the majority of health tourism likely comes from British passport holders who are not entitled to NHS care! So that doesn’t work either. People have suggested to me that your NHS card would suffice but again, this won’t help with ex pats who presumably have an NHS number and card (for the record, despite being born in the UK and living here my entire life I’ve never seen my NHS card and would have no idea what I’d do with it anyway). So that leaves us with two options, either an entitlement checking service that would involve a large number of dedicated staff checking a computer system to see whether each patient is entitled or a specific ID card that could be issued (and presumably renewed every couple of years) to prove entitlement. At this point, we should remember that the cost of government IT systems is always astronomical and that the last time the government considered ID cards the cost was put at £5.4bn or about 20 times the maximum saving of ID checks!

You also have the problem that ID checks won’t prevent all health tourism. St Georges Hospital in London has said it has a problem with Nigerian women going there to give birth. They can clearly be turned away in the early stages of pregnancy but if a woman presents herself to the hospital in labour she is, quite rightly, not going to be turned away!

Is there a better way for the NHS to cut the amount spent on overseas patients? Yes there is a much simpler method.

First, the NHS is useless at claiming back the cost of treatment from other member states. Put in place a structure and train staff on how to refer to the payment collection teams could bring in up to £500M a year, dwarfing the figure spent on actual health tourists! Secondly, not all overseas patients are from the EU but many of them will have health insurance… so claim from their insurance providers. The NHS isn’t going to recover all of the £18bn spent each year but it could do a lot better than it does. Government has estimated that if it actually billed people, about 40% would pay up. This is terribly pessimistic. If you ran a business on the basis that only 40% would pay you’d go bankrupt. Businesses manage to recover far more of their fees than 40% and I can see no obvious reason why the NHS couldn’t do much better.

Slightly off-topic but one of my local NHS hospitals treats health tourists. They are very good for the NHS. They are usually very wealthy foreigners who will pay a lot of money to be treated in the UK’s world class hospitals and rehabilitation facilities. They improve things for NHS patients too because their fees enable the hospital to put on more NHS staff and open more beds – that is a model that the NHS should consider adopting. People want to come here for treatment… let them!

Calls for ID checks annoy me. Not because it affects me, I’m British and entitled to treatment so aside from being a little inconvenient it makes no difference to me. I’m annoyed because ID checks are ineffective and risk breaking down the relationship between medical staff and patients. Worse, I don’t believe anybody in their right mind can seriously think that ID checks will make any serious difference to the NHS nationally – in specific local areas maybe – they are proposed because politicians know that in the current climate a lot of right wing newspapers hate foreigners and a lot of people distrust foreigners. Proposals like this that can make no serious difference are designed to pander to people’s basest emotions, garner headlines for the politicians and do absolutely nothing to help people in their everyday lives.

Monday, 21 November 2016

Did Liz Truss break the law?

Lord Chancellor Elizabeth Truss MP

A couple of days ago the Times reported that former Lord Chief Justice, Lord Judge, said that our current Lord Chancellor, Liz Truss, may have broken the law by failing to defend judges following personal criticism of them by national newspapers, one of which described them as “Enemies of the People”. Obviously, I usually defer to his Lordship’s better knowledge in all matters legal but in this instance, I am not convinced he is correct.

What is the law? The Constitutional Reform Act 2005 sets out who can be Lord Chancellor and the functions they must perform in the role. We’ll skim over the debatable question of whether Liz Truss, a junior politician with no experience of the justice system beyond a 17 month stint on the Justice Committee and no legal training, is actually qualified to hold the post and move swiftly on to the role of the Lord Chancellor.

Section 3 of the CRA 2005 is concerned with guaranteeing the independence of the judiciary. The section tells us that:

(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

(4) The following particular duties are imposed for the purpose of upholding that independence.

(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

(6) The Lord Chancellor must have regard to—

(a) the need to defend that independence;

(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;

(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.

We can see from the Act that it is not only the Lord Chancellor but also other Ministers who have a duty to uphold the independence of the judiciary – I have yet to see any criticism of anyone else, such as Sir Oliver Heald QC MP (an actual barrister, called in 1977 and an MP since 1992) who is Minister of State for Courts and Justice. The Lord Chancellor herself must take account of the three points mentioned in subsection 6, in this case you might agree with me that the first two are relevant to a situation where the press have misrepresented the impact, meaning and scope of a judicial decision, branded the judges “enemies of the people” and personally attacked the judges who made the decision – in one case the attack was because he is homosexual.

It is important to note that the Act does not require the Lord Chancellor to protect the judges themselves, merely the independence of the judiciary – that is an entirely different thing.

There is no provision in the Act creating a penalty for breach of section 3.

In addition to the 2005 Act, the Lord Chancellor should consider the Promissory Oaths Act 1868, which contains the oath to be taken by the Lord Chancellor as soon as may be after acceptance of the office. Section 6A(2) sets out the oath:

“I, [Liz Truss], do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”

The 1868 Act contains no provision or penalty for breach of an oath, aside from if the Lord Chancellor refuses to take the oath, which is not the case here. It has been suggested to me that breach of the oath is perjury; however, the Perjury Act 1911 defines perjury and does not include any reference to breaching an oath under the 1863 Act. While it’s a little elderly now, I note that in his 1838 Commentaries on the Laws of England in Four Books, Sir William Blackstone says,

“And even where an oath is required by an act of parliament in an extrajudicial proceeding the breach of that obligation does not seem to amount to perjury unless the statute contain an express provision to that effect”

Liz Truss's letter to the Times
So, it would appear that while the Lord Chancellor is required to have regard to various factors and swears an oath to uphold the independence of the judiciary there is no actual penalty, aside from judicial review proceedings, should she fail to live up to her obligations.

I am not going to go through the motion of analysing in depth whether the attacks on the judges were an attack on their independence because, it strikes me as unarguable that they are. Branding three of the most senior judges in the country “enemies of the people” and engaging in false reporting about the decision can only be intended to stir up disquiet among the population and the upshot of that is that pressure will be put upon judges and magistrates who hear cases to decide them according to how the Daily Mail and Sun think best to avoid similar treatment but also on the Supreme Court justices who will hear the appeal.

What did Liz Truss say in response to the newspaper attacks? The answer is “not very much”. She released her official statement:

"The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.

"In relation to the case heard in the High Court, the government has made it clear it will appeal to the Supreme Court. Legal process must be followed."

She subsequently wrote to the Times, repeating the importance of an independent judiciary, although most of the letter is concerned with the defence of Liz Truss.

The questions we must ask ourselves are:

1.       Does this defend the independence of the judiciary?

2.       Has the Lord Chancellor discharged her duty to defend the independence of the judiciary in accordance with her oath?

I think that the answer to question 1 must be “yes”. Whether you like it or not a Government minister stating clearly that “the independence of the judiciary is the foundation upon which our rule of law is built… legal process must be followed” is clearly defending their independence, which is precisely what section 3(1) of the 2005 Act requires.

The oath requires the Lord Chancellor to “respect the rule of law”, which she hints at in her statement and sets out clearly in her letter to the Times. It also requires her to “defend the independence of the judiciary”, which she has done. Interestingly, the oath does not explicitly require her to defend the rule of law, merely respect it.
State of our courts

There is nothing in either the 1868 nor 2005 Acts that requires a defence to be strongly mounted, ingenious, convincing or accomplished. The only requirement is that judicial independence is defended. To that extent she has done her job, although not quite as well as she could have.

If we are going to criticise the Lord Chancellor for breaking her oath then we should consider the final portion of the oath where she promised to, “discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”. The courts are today in a terrible state and getting worse because they, like the rest of the justice system, are seriously under resourced. That is a part of the oath that Liz Truss is currently breaching and so did Michael Gove and Chris Grayling before her. She has time to do something about it, the question is: will she?