Friday, 27 May 2016

No to a ban on fee charging McKenzie Friends

Ben McKenzie & friend (no relation to the pseudo-lawyers)

I appear to be in a state of perpetual shock and disbelief this week and the Legal Services Board have done nothing to help me out of that state.

Yesterday morning they responded to the Judicial Executive Board’s consultation on the approach courts should take to McKenzie Friends.

What is a McKenzie Friend? I can do no better than the definition given by RobinSpon-Smith of 1 Hare Court so I shan’t try:

“A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions – for example as to questions to put to a witness. Although usually a non-lawyer, the McKenzie friend should not be thought of as a species of lay advocate and has no right to address the court.”

Originally, a McKenzie Friend was literally a friend of a litigant in person who could assist him in court. Or, it might be somebody offering support on behalf of a charity. McKenzie Friends were never intended to become a way for profit to be made.

It's important to note that McKenzie Friends need no qualification, are not regulated and have no indemnity insurance should they make a mistake. There is no system that exists to ensure that a person acting as a paid McKenzie Friend understands the law to begin with much less keeps up to date with changes in law and procedure.

This is a problem because you as a consumer have absolutely no idea whether the person you hand over your money to has any idea what is going on or is actually able to give you the necessary guidance. I recall seeing a McKenzie Friend attempt to appear before Thames Magistrates’ Court in a criminal law case. It was immediately obvious that he was not a qualified lawyer despite his attempt to exercise rights of audience he did not possess. The District Judge quickly noticed the significant errors he made from the start and booted him out of court. He made a comment as he went that was telling – he told the DJ that “I appear in courts every day, nobody else has a problem with me speaking on behalf of my clients”.

Some years ago I came across a group of solicitors who had decided not to renew their practising certificates and operate as a firm of “law advisers” to people facing all sorts of legal problems. I asked why they would do that? The director told me that it was to cut overheads because as lay advisers they did not require insurance or the costs of being regulated. Nor could anybody step in and fine them (or even take over their business) if they made mistakes.

TheLSB takes the view that there is no need to do anything about paid McKenzieFriends. They point to the “significant change” that the justice system is going through – while they don’t say it I’d suggest that the most relevant significant change is the removal of legal aid from pretty much all civil law cases and its restriction in criminal law cases. They go on to talk about a survey that showed “… 64% of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers’ choice should be targeted and based on evidence of detriment.”

For me the idea that people may be going to a completely untrained, unqualified, unregulated and uninsured person for legal advice with their problems is evidence enough of a high risk of detriment that may be caused. Let’s not forget that McKenzie v McKenzie (the case that gives us the name of McKenzie Friends) was a family law case as are many cases now where McKenzie Friends give assistance. Their clients are often fathers desperate to gain access to their children – the sort of desperate people who need proper, professional legal advice from a solicitor who is qualified, regulated and insured against errors.

As the LSB alludes, most of the McKenzie Friends firms on the internet advertise themselves as a direct alternative to solicitors. They point out that their fees are significantly lower than those charged by a solicitor but they make no mention of the limitations of their services or their lack of qualifications to be giving legal advice in the first place. If you look at the comments on this Gazette story you'll see a McKenzie Friend claiming that having no knowledge of family law is no barrier to practising it. To me it reads as somebody having insufficient knowledge to recognise his own limitations - somebody else points out a few of his misunderstandings in following comments (wasn't me).

Ask yourself this – when the government goes to court do you ever see the Secretary of State rocking up with a McKenzie Friend to help out? Of course you don’t. When did you last see a major business send along a director and an unqualified McKenzie Friend to deal with a case? The celebs who seek privacy injunctions never turn up by themselves with an unqualified adviser to steer them through court do they? And why do you think that might be? It’s not because McKenzie Friends offer a cost effective solution and all these people are too daft to see what a good deal it is – it’s because they want quality legal advice from a source they know they can trust, in other words a solicitor and/or a barrister.

McKenzie Friends have their place. Where somebody is genuinely assisting a friend or where a charity is providing support they can be invaluable. But when somebody is conducting a business you have to ask yourself why have they not managed to qualify as a solicitor if they have sufficient legal skills to resolve this problem? If they don’t have those skills, then why would I want to pay this person to advise me in court?

The reason McKenzie Friends are so popular is because solicitors cost too much money and, frankly most of them are hopeless at estimating costs (in my experience at least). The profession must start charging fixed fees – it’s not hard, I’ve been doing it for years and all it needs is a little thought to get your fees correct. Once people see that they can get a proper solicitor for a reasonable fee then paid McKenzie Friends will disappear.

Thursday, 26 May 2016

Psychoactive Substances Act 2016
Drug pusher

Back in June 2015, I wrote about the proposed ban on psychoactive drugs and, being the pessimistic old fart I am, I predicted it would be a dogs dinner if it were ever introduced.

I must report that I was wrong. The Act is not a dogs dinner – feeding your dog on food as badly contaminated as the Psychoactive Substances Act 2016 would probably kill it.

It gets off to a bad start for me with section 1, “Overview”. This section literally tells you what the other sections say – it’s pointless and reads like the sort introduction a 14 year old might put at the start of an essay.

Section 2 weirdly defines the meaning of psychoactive substance, useful but this sort of thing used to go in the interpretation section of an act – in fact it does also appear in the interpretation section with a reference that we should go back to section 2. Oh well, I’m just being fussy now – let’s look at what a psychoactive substance is rather than criticise layout.

“2      Meaning of “psychoactive substance” etc

(1)   In this Act “psychoactive substance” means any substance which—

(a)    is capable of producing a psychoactive effect in a person who consumes it, and

(b)   is not an exempted substance (see section 3).

(2)   For the purposes of this Act a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state; and references to a substance’s psychoactive effects are to be read accordingly.

(3)   For the purposes of this Act a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way.”

First, I have to know what the “etc” is doing at the end of the title of the section – did they put that in a draft and forget to remove it? Anyway, a substance is a psychoactive substance if it produces a psychoactive effect in the person who consumes and it is not an exempted substance. A psychoactive effect is one that, “… if stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state …” It’s almost as if they read my blog to get that definition… or stole it from the World Health Organisation like I did.

Check out subsection 3, it’s important. It tells us that consumption is when the substance enters the body in anyway, including as fumes – that’s a big clue that shit’s about to get real.

Section 3 of the Act tells us that the Secretary of State can make regulations to add, vary or remove any substance from the list of those exempted from the ban on psychoactive substances. It also tells us to check out Schedule 1 to see the current list. So, let’s do that.

I won’t reproduce the whole of Schedule 1 as it takes up too much space, but these are the items that are exempted:
1.      Medicinal products (as defined by the Human Medicines Regulations 2012);
2.      Alcohol;
3.      Nicotine and tobacco;
4.      Caffeine; and
5.      Food, including drink.

So, what about things like glue and petrol (or poppers - will nobody think of the poppers)? They can have a psychoactive affect and, as we’ve seen, inhaling fumes is included as a method of delivery. But, I hear you cry they aren’t made for that purpose so they aren’t included in the ban. Okay, well let’s check out the offences.

Section 4 makes it an offence to produce a psychoactive substance. The offence is committed if you knowingly produce a psychoactive substance and you know or suspect it to be a psychoactive substance and you intend to consume it, or you know or are reckless as to whether it is likely to be consumed as a psychoactive substance by someone else.

Let’s take superglue. Can superglue meet the definition of a psychoactive substance? Well, it can when it’s fumes are inhaled. When Loctite make it are they doing so intentionally? Yes. Do they know or suspect it to be a psychoactive substance? Yes – that’s why they have warnings on glues about using them in confined spaces. Do they intend to consume it? No… but, don’t forget they also commit an offence if they know or are reckless as to whether it is likely be consumed. Now, I used to work in a DIY shop and I can tell you I’ve had a few uncomfortable conversations with customers who we suspected might be sniffing glue. We all know people do it and so do the manufacturers. Finally, there is a defence built into the Act where an activity is exempted – but, making glue is not one of them.

So, it would appear that manufacturers of glue are committing an offence from today when the Act came into force! This also applies to petrol companies and anybody else who manufactures substances that fall within this Act. It’s also worth noting that section 56 makes directors and managers of businesses criminally liable for offences, even where the director did not know the offence was being committed and the prosecution can show he did not know due to neglect on his part. The director can then be punished as if he had personally committed the offences!

It’s also worth saying that Schedule 1 exempts medicinal products as defined by the Human Medicines Regulations 2012. We are not the only species on this planet and we have developed medication specifically for non-human animals. I’m no vet but I bet a lot of those medicines will fall within the definition of psychoactive substances and have not been exempted and are thus now illegal (ketamine anyone).

Section 5 criminalises the supply of psychoactive substances and, would appear on my reading, to include shop workers who sell glue or petrol - or vets handing out medication to pet owners . Although, it has to be said the test here is slightly harder for the prosecution to meet because we are now not talking about some abstract person as with the production offence, the prosecution must prove that the supplier knows or is reckless as to whether the person buying it will consume it or give it to someone else to consume.

It is an offence to possess a psychoactive substance in a prison but not out and about on the streets. The Act grants powers to the police to search people they suspect of committing an offence under this Act but, since it is not an offence to possess it on the street, the police do not have the power to search you if they suspect you are merely in possession.

The lack of an offence of possession, while forward-thinking, is interesting because it is an offence to be in possession with an intention to supply. An old trick of drug dealers is to keep just enough drugs on them to supply but a small enough amount to be able to argue they are merely in possession for personal use. Thus, when a dealer is arrested you can expect them to be arguing the drugs are for personal use and thus no crime has been committed.

All of the offences, except possession in a prison, carry a maximum sentence of 7 years imprisonment. Possession in a prison has a maximum of 2 years. So, if you are a director a Loctite or Shell or BP or if you are a vet you may well be committing a criminal offence that could see your business fined and you sent to prison for the better part of a decade!

On a side note, one of the chief failings of all governments has been the idea that we can trust prosecutors to behave reasonably. I do not mean this to be insulting to prosecutors but that is simply not a good basis on which to create criminal offences. We see mission creep time and again in criminal law where a law is made for one purpose and ends up being used for another. The Proceeds of Crime Act 2003 is an excellent example. Designed to tackle major criminals it made the possession of criminal property a crime. Over time prosecutors realised that the definition also fit the facts in all handling stolen good cases, except the Proceeds of Crime Act offence is easier for them to prove! We saw the same thing with the Regulation of Investigatory Powers Act (RIPA), intended to provide a frame work for police to investigate really serious crime we saw it being abused by local councils to spy on people putting their bins out on the wrong day or the wrong thing in recycling bins.

To assume that those in charge of enforcing and prosecuting crimes are now and always will be reasonable people who will follow your intentions, even when you don’t set them out clearly, is the path to tyranny.

Wednesday, 25 May 2016

Are we a nation of prudes?

Aghh Michael Gove's coming... delete, delete, delete

Last year three judges were sacked and one resigned after being caught viewing pornography at work. There was no suggestion that this interfered with their judicial office or any cases that they were hearing. It all happened in private in their own offices and appears to have been detected only because the Ministry of Justice audited computer use by employees. It appears that none of this was regular and, in some cases, occurred on just one or two occasions.

Two of the men were full time judges while the other two were part-timers, which usually means they are still in practice as lawyers when not sitting as a judge.

Staff viewing non-work related websites, including pornography, during work hours is a problem for all employers. When I had employees if I’d sacked everyone who looked at porn once or twice I doubt there would have been anybody left. If I sacked everybody who looked at non-work websites just once a day, I’d definitely have been a very lonely lawyer. There did come a time when we let an employee go because he was viewing porn at work – his was an extreme case. He was doing it in the reception area next to a 12-foot-high and 20-foot-long window that looked directly on to the high street so was potentially visible to anybody passing by. He was warned but ignored the warnings and was eventually sacked.

One of the judges, I’m not going to name him, was accused by the Solicitors Regulation Authority of failing to act with integrity and to behave in a way that maintains the trust the public places in him. He admitted the charge on the basis that he accessed “inappropriate material on two occasions”. There was no suggestion that he had done any criminal act, allowed his work to suffer or done anything that would have an impact on justice.

Another judge is currently battling the Ministry of Justice’s decision to fire him on the basis that he was suffering from severe depression at the time following the breakdown of his marriage. You might think that when an employer discovers an employee is unwell the right course of action is to support that person, especially where there is no suggestion that his actions, again in private, had any impact on his work.

No reports suggest that any of the judges were warned about their behaviour or given an opportunity to correct their behaviour. In one case, the judge who accessed porn on two occasions did so TWO YEARS before his sacking – there is no suggestion in any reports I have read that he had repeated this action in the next two years.

I’m not suggesting that judges should be allowed to wank themselves silly in court or be given free passes to Pleasure Zone, Spicy Tranny and Retro Porn Hub (three of the sites of choice by the judiciary I understand) but a sensible attitude needs to be taken when dealing with people accessing lawful, non-work-related material during work time. I note that nobody has been sacked for accessing Facebook or Twitter and I bet far more judges access that every day than most of these people were looking at pornography. In short, if it weren't for a prudish attitude to porn these men would have been dealt with very differently.

A final thought: we’re always being told that the judiciary should reflect the general population, well now we know that some members of the judiciary are wankers (we all suspected it) just like some of the general population. Another box ticked, the MoJ should be pleased.