The Defence Brief

Stop delaying justice

2012-01-27T16:51:00.000Z

The MOJ has brought out a new initiative called Stop Delaying Justice... okay so it's technically an initiative of the judiciary in the magistrates court but its an MOJ thing really.

The idea is that rather than allow defendants to take full advice on a case and their representatives to properly scrutinise the evidence, pleas should be taken on the first hearing and the case disposed of at the second hearing. That means you enter a plea at first appearance then trial is second appearance no exception.

That's all well and good, but the truth is that if you speak to the duty solicitor at Thames Mags he might well have 15 other clients to deal with. How much scrutiny do you think he's given you case? Not much is the answer. We can all say "well Mr X should know if he committed the crime or not". But that's often not the case. And, even if it is this country operates an adversarial legal system meaning that the prosecution must prove the defendant's guilt and there is nothing wrong with the defendant asking the prosecution to do just that.

The other problem with Stop Delaying Justice is the CJSSS initiative that was also supposed to speed up the courts by reducing the amount of paperwork... in other words, instead of providing their evidence to the defence and court the prosecution simply give a Janet and John summary of the evidence upon which you are supposed to base all of your tactical decisions that Stop Delaying Justice insists you make on the spot at the first appearance.

How am I supposed to say if PC Smith is required when I've never seen a statement from him? How do I agree that the arrest was lawful when I have no evidence about the arrest? How do I agree that the interview transcript is accurate when I have neither transcript nor tape (and even if I did have the tape I have no way of listening to it). To top it all, how am I supposed to agree evidence and do everything else when I'm appearing as the duty solicitor, have no legal aid and cannot say for sure whether I will be representing the client at trial?

It's also worth remembering that the summary is usually written by the police officer who has dealt with the defendant and because the police officers are human the summaries are frequently one-sided in favour of the prosecution. In some cases you do get both the summary and selected witness statements, between which it is not uncommon to find significant disagreement.

Since the new year a number of courts have been turned into trial courts meaning that their pre-trial work is shipped to a neighbouring court. In my area, Stratford is a trial court with all the other work going to Thames. Last Monday court one at Thames had a list of 50 people and one duty solicitor to cover all comers. The other courts had very similar lists. The cells were holding just under 50 people, even though they have barely half that number of cells.

These initiatives are not about reducing delays. They are about increasing conviction rates in my opinion.

If the MOJ seriously wants to reduce justice delays then they need to stop messing about with courts. Keep the busy ones open, ensure that they are properly staffed and do the work in their area effectively. Not sending cases all over the place and having courts in one place and admin in another - e.g. Romford Mags had its admin centre about 8 miles away in Redbridge for a while, which is fine until somebody forgets to send a file over then you have a week long delay!

Legal aid myths

2012-01-24T14:24:00.000Z

I have come across this document from the Justice for All campaign that highlights a few myths about legal aid.

It's interesting and worth a read.

Incidentally, the salary figure for a solicitor is probably accurate in London, where salaries are between about £23-26,000 p.a. Outside of London I've seen job adverts for newly qualified solicitors starting as low as £19K p.a.

Justice does NOT move quickly

2012-01-24T12:43:00.000Z

At the start of the year, I dealt with a client who was accused of an affray. The case was considered too serious for the magistrates so the bench directed that it be committed for trial at the Crown Court. The defendant was remanded in custody for his own protection (he was considered to be at high risk of self-harm).

For reasons known only to the CPS, they took the view that as the allegation was so serious they would reduce the charge to common assault thus reducing the maximum possible sentence and meaning that the case could now only be heard in the magistrates' court. A trial date was set for the end of February.

Yesterday the case came before the court. By now the client had been assessed by two psychiatrists and deemed to have no mental health problems. Having calmed down a lot in three weeks since I last saw him he no longer appeared to be at risk of self-harm and was hoping to be released to await trial.

The judge spoke to the list office and we were offered a trial this morning - that is to say yesterday morning the court scheduled a trial to take place this morning so 24-hours later. The prosecution were asked to confirm that they could proceed with 24-hours notice and they said that there would be no problems with such short notice.

This morning one of my colleagues arrived to conduct the trial only to find the CPS now complaining about the short notice. Despite their assurances yesterday that they could definately go ahead, this morning they complain that 24-hours is insufficient time to get witnesses to travel the half-mile to court for a trial that will take less than 2-hours from start to finish - the key prosecution witness would probably be giving evidence for between 20 - 30 minutes, so would probably have been released by 10.45am at the latest.

Because of this the trial didn't go ahead and the defendant was again remanded into custody; I have to say I think incorrectly.

The sad truth is that once the case is over the defendant will be released immediately regardless of whether he is convicted or acquitted because of the time that has already been served!

Even when we try to move quickly things rarely work out.

This is why granting legal aid saves money

2012-01-10T09:56:00.000Z

Yesterday I represented a man accused of criminal damage. I collected the papers from the prosecutor but when I went through them I thought I must have been missing something. He was accused of causing just £40 worth of damage to a piece of plastic on a car, he had no previous convictions and had spent 10-days in prison thus far.

Given that on conviction he was likely to receive a fine in the region of £100 plus costs and £40 compensation for the repair I was pretty surprised that he had been remanded for so long.

When I spoke to him it emerged that he was technically homeless, which in the minds of many magistrates seems to equate with untrustworthy and thus inclined to skip bail. It also turned out that he hadn't received any legal advice prior to speaking with me, nor had he seen the papers in his case and was thus mostly unaware of the accusation against him.

Yesterday's hearing was the third listing as the Prison Service failed to produced him for the last hearing and a trial date had already been fixed because of the insistence of magistrates that they must "case manage" at the very first hearing regardless of the circumstances facing them.

Prior to each hearing the prosecutor would have had to read all the papers in the case to prepare. The Prison Service have had to arrange transportation of the prisoner as well as housing and feeding him for 10-days (according to one newspaper that's a cost of £770 excluding transportation). During each hearing (including the one he didn't show up for) there would have been a list caller, legal adviser and prosecutor in court. Probation officers had also become involved trying to find a bail hostel to get this man out of prison. Finally, as English was not this man's first language and his English was not up to understanding the court proceedings there was an interpreter present at all three hearings.

After the hearings the court and CPS administrators would have had to spend time resulting the case and updating the computer records. By the time you factor in the cost of court staff, lighting, heating etc I feel confident in saying that this case has cost the tax payer well over £2,000 and quite possibly more than £3,000.

Yesterday I show up. I had a short chat with the client. I explained the evidence against him and told him where it was supposed to have happened as well as listening to what he had to say. He told me he was drunk and doesn't remember much at all. But when faced with the (overwhelming) evidence he accepted that he probably had committed the offence and asked to be allowed to change his plea to guilty.

He was sentenced to a £50 fine, deemed served by the time he spent in prison and was told to pay the £40 compensation within 2-weeks.

I don't really expect that I'll get paid for this case. But, if the LSC do grant legal aid then my fee will be about £240 (legal aid rates were recently reduced and I'm not sure what the current fee is off the top of my head). This is a standard fee set by the Government. For the sake of that £240 fee at the first hearing we could have saved the costs of locking him up, transporting him and two court hearings. If he'd been introduced to the duty solicitor at the first hearing then there wouldn't have even been the £240 fee! In that case the case would have probably cost around £500 - £750 including my fee!

Once we have more unrepresented defendants who either cannot or will not pay privately then you will quickly find that the costs of the court system go up overall because nobody is being told to hold their hands up when they clearly have no hope of winning! You'll also find that if you or a loved one are accused of a crime or are a victim of a crime and have to give evidence then you'll be waiting for justice for a very very long time as the courts creak over closer to total seizure.

Appealing convictions

2011-12-29T10:19:00.000Z

It's been quite a while since I last got around to writing anything so I thought I best start off with something topical. Then I thought sod that, I'll write about something relevant to me and everyone else can like it or lump it... or I suppose leave abusive comments, although you really shouldn't do that you naughty trolls.

In the modern world a lot of solicitors like to be lawyers and do lawyery things like consider papers, draft documents and advise clients. I also enjoy that, but I have also come to terms with my additional roles, which include such delights as courier, messenger boy and now long distance delivery driver.

Anyway, the source of this rant comes from the fact that yesterday I ended my Christmas break early, left my girlfriend and our son at her parents to drive for three-hours to Leeds to collect papers for a client's appeal and then drive the three-hours back to my girlfriend's parents to drop the car back to her followed by another two-hours on my bike riding back home (leaving them to enjoy a few more days in Cheltenham). I didn't particularly mind doing that even though I won't get the £100 back I spent on petrol, nor will I be paid for the time I spent on this mission. What I did mind though was that when I arrived, the person I was due to meet had "forgotten" to get the papers. He knew I was coming as I had arranged the meeting with him two-weeks ago and had called him in the morning to remind him. I offered to drive him to collect the papers, but the person who had them wasn't going to be available for 6 or 7-hours. So, I drove back empty handed.

This (finally) brings me onto the subject of this post, which is appealing convictions. In my experience, finding grounds of appeal isn't really difficult. Either the judge made a mistake at trial, in which case it will show up in the transcripts or he didn't. Finding new evidence is a far more exciting way to bring about an appeal to that end I have spent days trawling shipping archives at the National Archive in Kew or interviewing witnesses I've found on the internet etc. I'll even take a weekend out to trace and interview witnesses abroad if need be... I don't even pretend that is a chore!

The hardest part of any appeal in my experience is getting the papers!

In September I went to see two men who both wanted me to appeal their convictions (one for murder and the other for attempted murder) in completely separate cases. One has papers with relatives and it was for him I went to Leeds. I thought getting his papers would be easy, but clearly not. The other had a solicitor at trial who a) is just around the corner from me; and b) by chance used to rent our offices before we took them over... so they are well known to me. Unfortunately, that solicitor has lost the papers. The CPS used to be very helpful in this situation and would happily provide any help they could; however, since the credit crunch they now refuse point blank to provide copies of papers (even when I've offered to pay for the cost of copying).

Papers not appearing is a very common problem; usually solicitors just ignore letters asking for papers... we even have a standard letter to send to other firms threatening to report them to the SRA if they don't cough up the papers ASAP.

If you or someone you know has a conviction you want to appeal, then I highly recommend taking action in this order:
1. Find a solicitor you are happy to work with and have represent you;
2. Instruct them and send back all the papers they send to you (this will include an authority allowing your old solicitor to release your papers);
3. Contact you old solicitor and speak with the solicitor who represented you giving clear instructions for him to send on your papers and provide a name and address (preferably a DX address) for the papers to be sent.
4. Check with your new solicitor whether he has received them and if not repeat step 3.

I promise that doing this will take an extra 10 minutes of your time and will mean your case ends (hopefully with a successful appeal) much earlier, possibly months earlier.

Good luck and happy new year.

I have found our next Prime Minister

2011-11-01T13:39:00.000Z

Good news, I have found our next Prime Minister!

Don't worry though, we don't have to abandon elections just yet, because I have a list of three names for you to chose from all of whom are currently unemployed and thus can start tomorrow.

First, is Giles Fraser. He has been in the news recently as he resigned as Canon Chancellor of St Paul's Cathedral. He is against violence and so when he become concerned that evicting the protesters from the church yard would end in violence he chose to have no part in it and resigned! MPs in general take note, this is integrity.

Second up is Fraser Dyer, a Chaplin at St Paul's who resigned because he felt "embarrassed by the position taken by the Dean and Chapter" of the cathedral. In other words, his bosses made a decision that he could not support on principle so he refused to support it and resigned his post. Nick Clegg, Vince Cable & other Liberal MPs take note this is called sticking to your principles and being honest about what you stand for.

Last is Graham Knowles who until yesterday was Dean of St Paul's and together with the Chapter took the decision to press for legal action to remove the protesters. He came to the conclusion that his actions were against his principles and resigned saying he is "no longer the right person to lead the Chapter". Tony Bliar et al take note of how to deal with mistakes.

So there you have it, three men who have all shown themselves to be principled, honest and who have integrity. They may not be able to preserve Britain's place in the world as a second-rate power being roughly wagged like a tail by the great body that is the USA but at least they might run the country in a way that puts the subjects of Her Majesty first.

Wiping the slate clean - taking offences into consideration

2011-11-01T08:45:00.000Z

The BBC are on a mission this week to discuss criminal offences that are dealt with by being taking into consideration, there are articles on their website, it's being discussed on the Today programme and I will be discussing it on Radio 4's Law in Action at 4pm on the 1st and 3rd November 2011 - well I might be if I was interest enough during the interview. Taking an offence into consideration is the process whereby a guilty defendant can admit to crimes for which they have not been charged on the understanding that they will not be prosecuted in future for that offence. This helps the police as each offence TiC'd counts as a bona fide detection and thus boosts forces detection rates.

It is not a well understood process, even by lawyers, and many make the mistake of thinking that once you TiC a crime you are safe from prosecution because you can rely on the special plea of autrefois convict - literally instead of pleading guilty or not guilty you enter a preemptive plea of autrefois and must then call evidence to prove that you have previously been convicted of the offence. However, an offence taken into consideration does not allow the autrefois plea to be raised! Case law dating back to the 1940's in R v Nicholson (if i remember rightly) has made clear that TiCing an offence does not protect a suspect from being charged later on. A TiC simply invokes a convention that the Crown will not seek to prosecute in future, although prosecution does remain a possibility in exceptional cases.

In some circumstances it may be possible to argue that the later prosecution is an abuse of the courts process and should thus be struck out. However, I suspect that this will only be effective where there had been relatively few offences TiC'd and the new offence is not a serious one because then the suspect can argue that their original sentence was inflated sufficiently to punish them for the new offence. I am not aware of any cases where this has been considered.

I should also point out that contrary to some BBC reports I have seen, suspects do not receive 'credit' for admitting more offences. In fact, the court will increase the sentence to take account of the TiC's.

Legal aid rules offer modern equivalent of Schrodinger's cat

2011-10-31T13:48:00.001Z

Sometimes you have to really think about a blog post, other times kind colleagues in other firms helpfully do it for you. Today, I am shamelessly copying the words of Andrew Port who is a partner at Dexter & Port Solicitors in Reading. The text below is from his letter to the Law Society Gazette that was published in the 27th October 2011 edition; both he and the Law Society have kindly given permission for me to reproduce the letter here.

"Now that there is no payment under legal aid for magistrates' court work which is committed to the Crown Court, I find myself in a practical equivalent of the paradox described by Schrodinger and his dead or alive moggy.

I have a representation order for a youth charged with two robberies. The details of the allegation are such that representations have been made to the prosecution that alternatives of assault and handling would be more appropriate. The court clerk has already made her view clear that, if the charge remains as robbery, she will strongly advise on committal as a grave crime. If my representations are accepted the case will stay in the Youth Court.

So at this moment in time I am both funded and not funded. I am certainly legally aided. But where is the incentive to waste time actually bothering to represent this youth with no previous convictions? If I attend court, secure an adjournment, make representation and attend court again, only to find I have been unsuccessful, I will be paid not a single penny for the work (not even the travel costs of getting to the court). If I succeed, I will be paid a lower category 1 fee [DB note: in London this is £284, outside of London I think it is approximately £230]. Where is the incentive to take the risk of non-payment when the interests of justice clearly demand that this individual should have representation?

And when the Legal Services Commission comes to audit me and demands the instant creation of a work-in-progress figure should I refer them to the paradox of Schrodinger's car or just pluck a figure out of thin air?"

Mr Port makes an excellent point. Aside from professional integrity and the milk of human kindness, why would a solicitor take the time and trouble to undertake potentially complicated pleadings and court hearings to the prosecution where there is a risk that if he fails he will not be paid, which is the current situation!

Before you think that the answer is that you shouldn't try to have a case dropped unless you know it will be dropped, I invite you to think that thought through properly and ask yourself whether if such a case was so appalling the prosecution might never have been brought?

Defence solicitors regularly come into possession of evidence or information that is not available to the police or CPS. They then present that information to the prosecution along with arguments as to why a case should be discontinued. Nobody can be certain that they will win (even if they have right, truth, justice and all that jazz on their side).

I'd also point out that this is not like "no win, no fee" litigation in personal injury cases. In those cases, solicitors are entitled to charge a success fee of up to 100% of their fee on cases that they win. Here it's a case of win and get paid, lose and don't.

Letter to Vince Cable MP about legal aid cuts

2011-10-26T17:29:00.000+01:00

I have decided to write a note to my MP about the proposed cuts to civil legal aid. I don't claim this to be a treatise on the finer points of the cuts, nor do I claim that this is in any way the definitive argument against the cuts, but I do think that it is worth making these points (and others) to MPs if you believe that poorer people should have the right to defend themselves and their rights against those who seek to abuse or those rights.

Urgent
Rt Hon Vincent Cable
House of Commons
London
SW1A 0AA

Date:                     26th October 2011
Our ref:                  nd/
Your ref:

Dear Mr Cable,
Re:         Proposed reforms to legal aid
I write in regards to the forthcoming vote in the House of Commons on the latest round of legal aid cuts.
I am writing to you as I am resident in your constituency and thus you are my MP – my home address is *** yeah like I'm putting that up on a website ***
As you can see from the letter head (this is printed on my firm's headed paper), I run a small firm of solicitors based in a very poor part of London. I make it clear now that while we do undertake criminal legal aid work we do not undertake any other form of legal aid and so we are not directly affected by these changes; however, I believe that it is important to bring to your attention the very real harm that this Bill will do to many of the people in the area where I work.
Your party leader recently made me laugh when he claimed to be in favour of protecting human rights. I laughed because he either doesn’t understand what he is talking about or has chosen to ignore the reality of his own policies.
You cannot on the one hand claim to be in favour of human rights while on the other hand you remove the ability of people to enforce those same rights, which is what legal aid is all about. It is like telling somebody you are in favour of their being alive but at the same time clamping your hand over their mouth to prevent them breathing! Removing legal aid will simply result in less people being able to enforce their rights and ultimately more people putting up with breaches of their rights. Your policy will kill the Human Rights Act.
On a more day to day basis, I read how some people make the absurd claim that removing legal aid will simply mean that more people sit down to discuss their problems civilly. This is nonsense. All that will happen is that those people who have money will be able to do whatever they like safe in the knowledge that their victims have no recourse to the courts because they simply cannot afford to bring a case. Even those who bring a case sans solicitor will be at serious risk because of the major financial losses they will suffer if they lose, in the form of their opponent’s fees.
Please do not underestimate the challenge of bringing a case to court. I am a solicitor; I qualified as a barrister first. I have rights of audience before all courts in England and Wales, including the Supreme Court. I have appeared everywhere from Richmond Magistrates’ Court to the Old Bailey and the Court of Appeal. Yet, I have my own solicitor who acts for me in areas of law with which I am not completely familiar and that solicitor instructs barristers to help me where necessary. If an experienced solicitor like me isn’t happy to go it alone in unfamiliar areas of law then imagine the terror that might strike into the heart of a man fighting alone for access to his children or a woman who has split from her partner and is trying to keep a roof over hers and her children’s heads.
I get the impression that many politicians live in the hope that solicitors will simply do the work for free, as we in criminal law are being told to do with much of the work we undertake in the magistrates courts.
This overlooks the obvious problem, which is that once legal aid has gone there will be huge gulfs, particularly in poor boroughs, where there will simply be no solicitors firms. Of course, this won’t affect people in more affluent areas who can afford to pay a solicitor out of their own pocket. But then, they should not, in my submission, be the highest priority of liberal leaning politicians when taking decisions like these.
We have a large legal aid bill because successive Governments have sought to encourage people to stand up for themselves and have given more and more rights to individuals that can only be enforced through the courts, such as the right to equal pay, rights against discrimination, the right to enjoy family life etc. Cutting legal aid means undermining all the rights that people have spent years fighting for and means undermining many of the principles that I believed the Liberal Democrat Party stood for.
For these reasons, I must ask you not to support the legal aid bill when Parliament votes on it next week. I understand that it may be difficult for you to vote against this bill and remain in the Government; however, if you really are a principled politician then it maybe that you have to do what is right rather than what is best for you and your career.
Please do not hesitate to contact me if you would like to discuss any of these points further.

Yours sincerely,

The Defence Brief

Abolishing IPP sentences and missing the point

2011-10-26T15:45:00.000+01:00

I read in this morning's Times that Ken Clarke is to abolish imprisonment for the public protection (IPP sentences), which are indeterminate prison sentences - in other words they are a life sentence as an offender must prove that he is safe to be released before he gets out of goal, can pass go and collect £200.

IPP sentences have done an awful lot to overwhelm the Prison Service and Parole Board, and I expect the Probation Service too. They have, at least, created some much needed work for lawyers and for that I think we must all applaud them (IPPs not lawyers, although if you’re feeling generous…). Despite the obvious advantages to me and my colleagues, many lawyers have this odd notion that locking people up and throwing away the key isn't the nicest way to treat people. The people who receive IPP sentences are often not the most serious criminals... if they were then they would have been sentenced to a good old fashioned life sentence, which is a requirement of the Act of Parliament that created IPPs. I have one client who received an IPP for robbing a man of £10, the force was pushing the victim’s wheelchair a few feet up the road and the theft was taking the £10 note from the man’s shirt pocket.

There are undoubtedly some people for whom an IPP is the right sentence in theory because those people will continue to commit crimes and there is a risk that they will hurt or kill somebody in future. In theory the IPP allows a person to be held until such time as they have undertaken work and/or treatment that addresses the causes of their criminal behaviour.

The reality of an IPP though is that if you get one then you’ll be given a minimum term that must be served and you can pretty much double that before you have any hope of release.

The problem with IPPs to my mind is not the sentences themselves - mostly I can see the reasoning behind the judge’s decision to rule that the offender is dangerous, which triggers the imposition of the IPP - no the real problem, at the point that the Government and some commentators have missed, is that when the Government brought in the IPPs they failed to invest at all in improving the Parole Board so that it had a hope in Hell of keeping up with the huge upsurge in demand for hearings. They also failed to invest in providing sufficient courses to actually allow prisoners to address the factors that have been said to be behind their criminal behaviour. At the moment, if you have a 2-year minimum tariff and need to undertake the enhanced thinking skills course, some drug/drink rehab and the anger management course (“Think First”, I think it’s called) then you will only be able to do so if you are lucky enough to end up in a prison that offers all three courses! If not you will have to make applications to be moved, which takes time and is a very difficult thing to do for somebody who struggles to focus their thoughts and who cannot piece together even a simple strategy for achieving a goal – the clue that they can’t do this is that they have to do the enhanced thinking skills and anger management courses. There is a very good chance that by the time your minimum term ends that you will not have completed one or all of the required courses, which will result in an almost automatic refusal of parole. Not that it matters much though, because the Parole Board is so over worked that it’s taking at least a year to have a case listed, which means if you get a 3-year minimum term it’ll be four-years before you get before the Parole Board.

Ken’s plan seems to be to appease the silly old sods - sorry I mean back bench Tory MPs and their grass root support – by “introducing” longer determinate sentences. This is also silly.

If you are a very naughty boy (or girl) then a nice friendly judge will tell you that you have to go to prison for, say, 6-years. However, because you had the good sense to instruct me and I told you to ‘fess up you naughty boy, I have managed to secure you a one-third discount from your sentence (although I have to admit that another lawyer could also achieve this result as His Judgelyness is required to discount your sentence in 99.99% of guilty plea cases, I like to think I do it with more style… which is important). Anyway, because of my excellent work you’re now down to 4-years. Well hang on a minute DB I hear you cry, I don’t want to be banged up for the next 4-years. Don’t worry, because it was only His Judgeship who heard the facts and passed sentence and nobody listens to old Judgy. So, as if by magic (actually it’s by Act of Parliament, but that sounded dull) your four-years automatically becomes 2-years before you’ve even left the building. Now, my work is done for the day. But, don’t worry because if you turn over a new leaf and behave yourself inside then you might just be eligible for early release on tag.

Has anybody spotted the clever way that the Government could not increase sentences and yet achieve the same result yet? You could even have a reward system of earlier release for good behaviour while inside – with the necessary Parole Board investment of course. Of course, there’s a very good reason why my idea won’t work and that’s because before a newspaper can explain it they have to first explain the current situation. That’s going to make very dull copy and will not sell papers, so they won’t report it. This means that Ken doesn’t get his column inches, so gets a telling off from “Call me” Dave. Because of this the Tory membership will simply see a Government letting people off of IPP sentences and not keeping them locked up. The lefty papers will take up this mantle and accuse Ken, Dave and the rest of being soft on crime – probably because of the evil Liberal influence – and so they risk losing the next election. It’s far easier therefore to just do something that requires no explanation in the newspapers beyond “lock ‘em up”.

If Ken or Dave or anybody else would like to hire me as a (slightly angry) consultant to help them formulate policy then I am available at very reasonable rates.

Bent coppers - when is too far?

2011-10-21T12:36:00.000+01:00

Claims are flying about that undercover police officers were arrested, prosecuted and convicted while using their cover names in court.

This is serious because if true then the police officer would have not only committed a criminal offence, in one case it is suggested he was convicted of assaulting another police officer, but more importantly if that undercover officer gave evidence he would have taken an oath to tell the truth. The first question his advocate would have asked him would have been along the lines, "would you please give your full name to the court?" If he answers with his false name then he is lying to a court and thus committing a further offence of perjury.

I have seen reports that say senior officers authorised undercover officers to stand trial under false names. If so then those officers are likely to be guilty of a conspiracy to commit perjury or pervert the course of justice.

Some police officers have been known to charge suspects with attempting to pervert the course of justice just for giving a false name when arrested, never mind at trial!

In certain circumstances I can see that it might be necessary to allow a police officer to stand trial under a false name so as not to jeopardise years of careful work; however, that is something that should be brought to the attention of the trial judge so that he or she can make a final decision as to what happens in his court. If the judge decides that what is proposed is not on then the Crown can make a decision whether they proceed with the trial or protect their operation. All sorts of reasons can be given for dropping a prosecution and discontinuing will not necessarily raise the suspicions of those being investigated if done properly.

If officers have lied to the courts and have committed violent offences against their own colleagues then you must question whether that officer has any value in the police force even where his actions were 'authorised', albeit in a seemingly unlawful way. In years to come if I happen to become involved in a case where that officer gives evidence against one of my clients then his previous conviction for assault will come as being relevant because he denied an offence to a court and was disbelieved - in other words he either lied when entering his plea and lied when he gave his evidence (if indeed he did give evidence). His word as a police officer is simply worthless.

Perhaps more seriously is the culture at very senior levels of the police that these allegations, if true, reveal. When does the actions of an undercover officer cross the line from being necessary to an investigation to being simply bent coppers? Are these senior officers actually up to the job of making that decision?

The Foreign and Commonwealth Office regularly rotates its overseas staff to stop them going native, that is becoming friends with and ultimately more concerned with the needs and wants of the locals where they are posted than with the interests of the UK.

Where a serving police officer is going around inflicting acts of violence upon other officers - and according to some accounts marrying one of the people he is supposed to be gathering intelligence on - you have to question whether he has gone native. More worryingly is the apparent inability of his handlers to recognise that this man was going beyond the acceptable boundaries of his operational role.

Some readers may think that I am naive about the realities of undercover work - I am not. Society faces a simple choice. You can allow undercover police officers to do whatever they like with little or no outside checks in which case be prepared to see the boundaries of acceptable behaviour move further and further in the direction of what we currently call police corruption and what is today acceptable for undercover work may be what is acceptable for normal bobbies tomorrow. Or, you can require that serving police officers act within the boundaries of the law that they have sworn to uphold and you can put in place a proper system for scrutinising undercover operations.

Riot appeals

2011-10-19T17:38:00.000+01:00

In the immediate wake of the riots in August, there was a lot of nonsense talked in robing rooms up and down the country about how OTT the sentences were. I had a discussion with one barrister who felt that the rioters should have been dealt with like shoplifters and sentenced on the basis of their actions, e.g. stealing a packet of cigarettes, with the courts ignoring the context in which the offences occurred.

Now that a bit of time has passed and the Court of Appeal is starting to uphold the sentences I have to ask whether anybody is really surprised at the sentences that were handed out?

Trafficking kids for crime

2011-10-18T13:38:00.000+01:00

I saw on the TV last night that Panorama will be presenting a show about how children are trafficked across Europe to beg and steal.

It's nice that the TV and authorities have finally picked up on this problem, indeed the Crown Prosecution Service now has a whole team dedicated to trafficking and a policy about it too.

Trafficking has it's sexy side - by which I mean a side that gets reported regularly, probably because it involves sex, which gives the newspapers the chance to titillate their weird readers and set the tongues of everybody else tutting at the inhumanity of johnny foreigner and/or the vile indifference of men who pay for sex.

What rarely gets reported is the flood of kids who are brought to the UK (and indeed every other European country) so that they can beg and steal. This isn't reported presumably because then the press would have to side with the feral youth whose crimes they like to gleefully report. These kids in my experience are usually between 11 and 19 years old - usually toward the younger end as the girls often seem to be married off as they approach late teens.

In my first year of criminal law practice the firm I worked at had a large client base of literally hundreds of kids and young adults who were exclusively female. They would pick a town or city and then swarm through it picking pockets and stealing from shops. Inevitably some would be arrested. A wholly inappropriate adult would turn up to act as the appropriate adult during the police interview. He (for it was always a he) would be inappropriate because he was usually one of the men controlling the girl who was in custody.

Now I'm not suggesting that these girls were prisoners of the men controlling them for they were not kept locked up, although I'm pretty sure some were beaten for not doing as they were told. They were children who had been taught to steal from a very young age and were then shipped across Europe (on one occasion they made it to the USA) sans parents stealing everything they could until the courts started to lock them up at which point they would move on to the next country until things died down a bit.

The police were never willing to take any action against the men who were clearly behind the crimes. On the one hand I can understand that as they would probably never have got the girls to give evidence against the men. I suspect that the girls had no faith in the police either - on one occasion I recall a group of girls aged 11, 13 and 15 none of whom spoke English all being strip searched without an appropriate adult present or an interpreter. The police literally had to pull the clothes off of them to conduct the search. I asked the officers how forcibly stripping a child naked could possibly outweigh the tiny risk of them having a mobile in their knickers (which they did not have incidentally), but was met with a wall of indifference.

I've said it before, if you want to cut crime then you must attack the causes of that crime. In this case, the place to attack is the men behind the gangs not the children committing the obvious crimes... it would be like fighting human trafficking by locking up the sex slaves for prostitution!

Citizenship tests

2011-10-11T17:31:00.000+01:00

I fear I may have to leave the UK and settle elsewhere as I have just failed the citizenship test on the Guardian website. Although, I would like to point out that the question about whether you can attend hospital without a GP's letter for a non-emergency is wrong on at least two levels. First, my GP has never given me a letter to take to the hospital; and secondly, I know that my local hospital runs walk-in sexual health clinics that do not require a referral. I believe they also operate some post-natal clinics on a similar basis.

The questions weren't what I expected and I did have to guess at a few of them... did anybody manage to pass without cheating or getting lucky?

Paranoia

2011-10-11T09:50:00.000+01:00

I know the dangers of commenting about a news story and that sometimes facts come out later that put an earlier story into a new light. But, I do have to question the grounds on which security guards would decide to challenge somebody for taking a photograph of his own child.

Search terms

2011-10-10T14:05:00.000+01:00

It's always interesting to see how readers have come across this blog. One chap has found me using the words "piss brif". I'm not sure what he was looking for (maybe a lawyer to defend a gross indecency charge?) but I hope he found something worth reading.

New driving offences proposed

2011-10-07T17:29:00.001+01:00

I understand that the Government are considering introducing a new offence of causing serious injury by dangerous driving, which I suppose means I'm going to have to update the firm's website (again).

As a fellow motorcyclist, I have sympathy for Darren Braund who was injured when a driver pulled in front of his motorbike causing him to collide with her car but looking at the description of the offence and the sentence I have my doubts whether this new offence would have made a difference for Mr Braund as it looks like the car driver was convicted of careless driving rather than dangerous driving, in which case the new offence wouldn't apply to her.

Dangerous driving is defined as driving that falls far below the minimum acceptable standard expected of a competent and careful driver; and it must be obvious to a competent and careful driver that driving in that way would be dangerous.

Whereas careless driving occurs when the way somebody drive falls below the minimum acceptable standard expected of a competent and careful driver.

I'm a bit old fashioned when it comes to defining offences. I still subscribe to the maximum "actus non facit reum nisi mens sit rea", which broadly speaking translates to "the act is not culpable unless the mind is guilty", i.e. you must do the act and mean to do it before you are guilty of an offence. There seems to be a new trend emerging for defining an offence by the harm caused rather than the intention behind the act. Even murder requires both a death and an intention to kill or cause GBH (by which is meant really serious harm), if you lack the necessary intent then you are not guilty of murder. I haven't seen a draft of the proposed new offence but I can only assume that it will require a. dangerous driving; and b. that serious harm occurs as a result of that driving. Thus there is no need to show that the offender intended to cause injury.

Personally, I think that a more elegant way of dealing with the problem is to increase the sentence for dangerous driving from two-years to five-years (or whatever is deemed appropriate) and then allowing courts to impose higher sentences where serious injury is caused. In fact, the case of R v Cooksley and others [2004] 1 Cr App R (S) 1 the court held that causing serious injury would be just such an aggravating factor.

I assume that the argument behind creating a new offence will be that if somebody is driving dangerously then they must realise that there is a risk of causing harm and so they should be liable for a higher penalty. But, for me that doesn't get away from the fact that the only difference between two cases could be that one person was lucky and the other was not.

Maybe it's a discussion for academic lawyers who no doubt have a much better grasp of these things than a mere practitioner like myself.

On a side note, I have started a new blog called Motoring Lawyer... I probably should have posted this piece there.

Tesco Law

2011-10-06T09:18:00.000+01:00

I just caught the end of BBC Breakfasts discussion on the new Legal Services Act 2007, which changes the way solicitors firms are owned.

This probably sounds like one of the least exciting topics in history, but it is important to everybody.

Currently certain activities can only be carried out by qualified solicitors and for good reason. In my own main practice area, criminal law, many people have this idea that what criminal lawyers do is very easy. In fact, a lot of other lawyers think it's easy and will happily dabble in criminal law, often to the detriment of their clients. In one case in which I acted, a co-defendant's commercial solicitor got involved in a cash forfeiture application. On one course I attended that solicitor's actions were described as "stupid" and "ill-considered". The solicitor didn't understand what he was doing and caused a loss of tens of thousands of pounds to his client. My client avoided that unnecessary loss. If that can happen with a qualified lawyer, imagine how your life could be ruined by a completely unqualified person conducting a criminal law case!

I recently took some advice from a marketing expert. He was very nice and a great marketer. But, he completely failed to understand that a solicitor owes a duty to his client and that a solicitor must put his client first - that means ahead of the solicitor's own interests! All of the ideas that my marketer devised would have generated a huge client base but I had serious concerns about how he intended to achieve it and so I refused to go ahead with any of his schemes!

Once companies like Tesco and the Co-Op own law firms does anybody seriously think that their drive for profit will mean that they put their customers first?

We expect that most companies coming into the market will follow the lead of the Co-Op and target will writing, personal injury and probate.

The will writing sector is already in crisis and co-incidentally has been unregulated for years. Yes, if you aren't worried about inheritance tax, what happens to your children or ensuring that your will is going to be valid you can buy a will online for less than £30. But, I wouldn't recommend it. Because people think that will writing is easy and anybody can do it there has been widespread criticism of will writers who require no legal qualifications to set up and get into business. Let me put this very simply. If you have any assets and die without a properly drafted will then there is a good chance that your assets will go to a probate lawyer as your family (or others) fight over what you leave behind. I have one client who stands to inherit about £5,000. His father died without a will and now the family are fighting over the money despite being warned several times that by the time they finish fighting they will have spent their entire inheritance on solicitors, barristers and court fees!

Things have got so bad that there are now proposals to regulate will writing services, just as claims handlers in personal injury are now regulated by the MOJ after the free for all that occurred in the 1990s and early noughties.

Will other parts of the legal sector go the same way? Do you really want a big company that is solely driven by profits handling your loved one's estate after their death? I'm not suggesting that solicitors are for profit businesses, but a solicitor owes a client a duty to put that client first. Breaching that duty can and does lead to solicitors being struck off and losing their career. There are very real and serious consequences for solicitors personally who break the rules.

While I'm sure that the Co-Op have only their client's best interests at heart, it's worth noting that the very nice man who heads up their legal division, which will be providing solicitor services to the public, isn't even a solicitor!

Amanda Knox and the English appeal system

2011-10-04T11:11:00.002+01:00

We wake up this morning to the news that Amanda Knox and Raffaele Sollecito have been cleared of the murder of Meredith Kercher on appeal.

Having read the news this morning I cannot say exactly why they were cleared because I wasn’t in court to hear the ruling and the press are reporting some very bizarre factors that I cannot imagine were on the minds of the judges. For example, the BBC in its 10 factors that helped Knox’s case, lists such things as a “PR campaign” launched from Seattle and the presence of supporters in the courtroom. I can confidently say that neither of these things would be likely to have any impact upon an English or Welsh court.

Perhaps the most informative thing in the BBC reports are that the Italian justice system has a very lenient appeals system where the court simply investigates the weakest aspect of the prosecution case. If true then it certainly does explain why Italy has a very low prison population.

In the UK, the appeal court will consider the entire case not just the weakest or strongest aspects of it. In England and Wales, the Court of Appeal will only interfere in a verdict if they find that the conviction is “unsafe”. A conviction can be unsafe for any number of reasons, but broadly the two big headlines are new evidence and an error in the trial process.

New evidence must be something that is genuinely new and was not available to the defence at the time of the trial. This is a very difficult test to overcome. Often there will be evidence available to both sides that is not used for tactical reasons in the trial. When this happens the Court of Appeal will assume that the decision not to use the evidence was taken either by the defendant or on his direct instructions. Showing that this is not the case means saying that your trial lawyers either misled you or did not do their jobs properly. You may not be surprised to hear that conviencing a bunch of senior lawyers that another bunch of senior lawyers are incompetent isn’t easy and I say that as somebody who has summoned a client’s former defence team (including two QC’s) to give evidence at the Court of Appeal! If the court decides that he evidence was available and that the defendant chose not to use it then the evidence is highly unlikely to be admitted and the conviction will stand.

An error in the trial process could be anything from inadmissible evidence being adduced before the jury or it could be an error by the judge in directing the jury or during the summing up.

Assuming that you have found either new evidence or a fault in the trial process you are still not home and dry yet! You still need to show the judges that the outcome of the trial would have been different had the new evidence been available at the trial or if the error had not occurred.

Even those of us who conduct appeals regularly and are good at them can tell stories of cases lost at the last hurdle because while the Court of Appeal accepts there was a serious error by the trial judge they still conclude that the rest of the evidence was sufficient to convict. It’s a very frustrating thing to have happen.

Would Amanda Knox and Raffaele Sollecito have been cleared on appeal in England and Wales? It’s difficult to say but what I am sure about is that they would have had a very difficult time clearing their names in an English appeal court.

Legal Aid

2011-08-26T11:44:00.000+01:00

“Legal aid is a service which the modern state owes to its citizens as a matter of principal. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor.”

Dr E. J. Cohn, Legal Aid for the Poor, 1941.

“For half a century the legal aid scheme enabled those without means to sue and defend themselves in the courts. The scheme was not without faults: it led to the public financing of too many unmeritorious claims, and it bore hardly on privately funded defendants. But its cost was its undoing. In the years 1988 to 1996/7 expenditure on civil (and also criminal) legal aid was the fasted rising item of government expenditure overall. So, perhaps ironically, it fell to the New Labour government to restrain access to civil legal aid, seeking to substitute conditional fee agreement and certain forms of insurance. Despite determined efforts by Lord Woolf, to reduce the cost of civil litigation, and the introduction of admirable pro bono (gratuitous) scheme by solicitors and barristers, there must be concern that there now exists, once again, a large unmet need.”

Tom Bingham, Baron of Cornhill, former Senior Lord of Appeal in Ordinary, The Rule of Law, 2010

The cost of legal aid has risen considerably since it was first introduced in Scotland in 1424 and in England 70-years later. Even since the Legal Aid and Advice Act 1949, which set up what we now recognise as our modern legal aid system, the costs have risen enormously. It is true that some lawyers were (and still are) greedy - this is nothing peculiar to lawyers, it is a trait found in all walks of humanity. Costs have risen for two main reasons: first, people have been encouraged by successive governments to view themselves as entitled to things and to stand up for themselves. I don't suggest that this is a bad thing. So, people who believe that they have a right to something and are now more likely than ever to take legal action to protect themselves. Secondly, as the police become more efficient and have more resources at their fingertips so the rates of arrest and trial increase. It is worth noting that in the 1930s the Met Police followed a policy of refusing to take reports of certain thefts and would instead record missing items as lost. Also, it is worth noting that by the end of the last Labour government they had created more then 4,300 new criminal offences, according to the Times Online on the 14 March 2010.

We, as a society, have a choice that is similar to the choice facing us over health. We can protect our health service and ensure that when we are ill it is there to help us. We can protect legal aid and if we are falsely (or even correctly) accused of a crime or are injured by a negligent medic or run down by a car then when we find ourselves vulnerable there will be somebody there to help us. Or, we can simply follow the views of newspapers like the Daily Mail and say that everybody who gets legal aid is a scrounger and the lawyers are all greedy thieves and then when the finger of suspicion or blame points at us we can wake up and realise that there is nobody left to speak for us.

Being the duty solicitor

2011-08-22T10:54:00.000+01:00

Last Friday and today (Monday) I am/was the duty solicitor at Stratford Magistrates' Court. The role of the duty solicitor is to advise and represent people who are appearing at court but who do not have a solicitor; there are a few more rules about who qualifies and who doesn't, but those aren't important right now.

I am currently the custody duty solicitor, which means that I am here to advise and represent anybody arrested by the police and charged over the weekend.. I heard on the news last night that the Metropolitan Police deal with approximately 2,000 offences per day. Stratford covers the Newham area of east London where I believe I am right in saying that Newham has a higher than average crime rate, although it's not one of the highest crime areas in London. So, with an average of 4,000 crimes committed over the weekend plus those committed on Friday night that couldn't make it to court on Saturday morning you might expect there to be quite a bit of work waiting for me on Monday morning.

There is no narey duty (who deals with defendant's not in custody) so I am available to cover those as well. I currently have zero clients. On Friday I had just one client.

Only two people have been brought to court from police stations, which means that just two people where charged and kept in custody by all of the police in the whole of Newham on Friday evening, Saturday and Sunday.

Just four people have been charged and bailed by the police to attend court today over the last week.

The court staff and other lawyers agree with my observation that the police/CPS seem averse to charging these days. I can only assume that when the next set of crime figures come out we are going to see a huge drop in crime of all types.

A-Level Results

2011-08-19T16:59:00.000+01:00

I'm not one who usually jumps on the band wagon of slagging off modern exams as being too easy, but having just read the reports in the Times of some students results I must confess to being a bit worried.

One young lady and another young man achieved eight A* at A-Level each. This tells me that at least one of the following things is likely to be true:

They have chosen subjects that are very easy;
They have chosen difficult subjects that are hard but the content of the syllabus and exams are too easy;
They are in desperate need of a life; or
They are both geniuses and will one day rule us all... or attend Comic-Con regularly.

I note that the young man's haul includes "critical thinking" and "general studies" both or which are joke qualifications. In fairness, almost everything else he studied sounds bloody difficult to me: chemistry, maths, further maths, economics and history. The remaining one is business studies, which could be difficult or not depending on what you are studying I suppose. I did a GCSE in it and it wasn't that hard.

The paper also reports on one 13-year-old (who co-incidentally goes to my girlfriend's old college) who scored an A* in physics and an A in chemistry but took just a single year rather than two to obtain these grades (presumably an academic year, so about 9 or 10 months instead of a real year).

Like I said at the start, I don't normally join in with this yearly obsession of doing down A-Levels, but when a child can clip through two in half the time it's supposed to take to do one and others are knocking down eight in a stride you have to ask yourself if these exams are still the gold standard in education. When I did mine 3 was standard, although a friend did do 4 proper courses plus general studies, which incidentally he got an A in without ever attending a lecture! He also barely had a life for two-years and claimed afterwards that it had been a mistake as there simply wasn't enough time to devote to each subject.

Government ordered rioters to be gaoled

2011-08-15T15:49:00.000+01:00

I have just read a report that a magistrate claims to have been directed by the Government to imprison all rioters. Not sure where this was originally reported.

I cannot say whether this is true or not, but if the magistrates at Camberwell Green did accede to such a command then it would seem to be a breach of their oath as JP's as well as a breach of the Rule of Law.

Pay to prove your innocence

2011-08-15T14:30:00.000+01:00

The Labour Government sought to introduce plans to prevent acquitted defendants to criminal cases from recovering their costs from the prosecution. In all cases, whether civil or criminal, it is said that "costs follow the event", which means that the losing side gets to pay the legal costs of the winning side. In criminal courts up and down the country you will daily see defendants who have been convicted or pleaded guilty being ordered to pay the costs claimed by the prosecution. Equally, if a defendant chooses to pay for his own defence and is acquitted then the prosecution has to repay him the money he spent defending himself.

So, to be clear what we are talking about are people who have been accused of a crime and found to be not guilty of that crime by either a jury or a bench of magistrates.

The Labour Government was judicially reviewed by those concerned about civil liberties (and no doubt some lawyers concerned about their income - let's not pretend that lawyers don't want to protect their livelihoods). The Government lost and those proposals never became law. The newly elected coalition confirmed at that time they would not appeal the High Court's ruling. However, despite that earlier promise the Coalition Government has now announced that they will in fact prevent the innocent from claiming back money spent proving their innocence.

The Bill will become law around April 2012. I anticipate that the Defence Cost Order (DCO) proposals will come into force shortly thereafter.

The proposals are:

1. No DCO's in any circumstances for companies/corporate bodies etc - they will have to bear the cost themselves or insure - although I will tell you now that I have tried and failed to find any insurance company willing to provide after the event legal expenses cover for criminal litigation;

2. No DCO's for individuals in the Crown Court as contributory legal aid is available in all case - you therefore take legal aid or nothing; and

3. In the Magistrates' Court DCO's will be available for acquitted individuals, capped at legal aid hourly rates.

Given the current financial mess that the country is in you might be surprised to hear that companies will be forced to pay for their own defence in circumstances where they have done nothing wrong. This will put practically any small business facing an accusation and in financial difficulties out of business.

The second proposal is also surprising for a majority conservative government in that it seeks to remove freedom of choice from people and requires them to become reliant upon the state... very socialist if you ask me. It's also worth noting that the contributions can be up to £900 per month and some cases can take more than a year to come to trial. At least if you pay privately you can have an agreement with your solicitor over how and when you make payments. I know for a fact that I couldn't afford to pay out an extra £900 p/m... could you?

The effect of point 3 will really be to stop people accused of motoring offences from being represented in court. Now, this isn't going to stop the rich from being represented because they can afford to absorb the difference between private and legal aid rates (my private hourly rates are pretty average at £180 p/h for a director, £140 for a solicitor and £90 for a trainee - my own solicitor charges me £300+VAT per hour! Legal aid hourly rates are fixed at £49.70 p/h). This means that the average man or woman accused of a motoring offence and facing losing their job will have some pretty touch choices to make.

So, let's say you come to me asking that I represent you personally at a trial. Say the whole case takes about 12 hours to prepare, which is about average for the magistrates court, then you will have a bill of about £2,000 - this is actually the fixed fee we offer for a mags court trial if I represent you personally. Now, let's say that because you are innocent you are found not guilty by the court. You can reclaim your costs at the legal aid hourly rate, so you will get back £596.40 leaving you with £1,403.60 to pay. Remember, criminal proceedings aren't something you can avoid like civil proceedings often are. You have no choice but to get involved and defend yourself in court if you are accused!

Just to give you an idea, my nearest competitor will do a mags court trial for £1,500 + VAT, so £1,800 all in. So you can see that my fees are not particularly high - if you read the papers you'll celebs who have paid £29,000 for a mags court trial (in the case of one comedian I read about).

If you agree with me that it is grossly unfair to ask innocent people to pay to prove their innocence then I urge you to sign this e-petition on the Government's petitions website.

Riots, compensation and political nonsense

2011-08-12T10:54:00.000+01:00

This week has seen some rioting in the streets. I am pleased to say that despite smashing up pretty much all of our neighbours my office on Mare Street, Hackney was left untouched. I can only assume that having the massive words "CRIMINAL DEFENCE SOLICITORS" in the front window helped. In fact, when I showed up on Tuesday morning the windows looked as though they'd had a good clean over night, which is nice if somewhat strange. The offices appeared on the news throughout the night and during much of Tuesday - you probably caught a glimpse although there's no reason you would have realised it was a solicitors office from the TV. If you saw the pictures of Ladbrookes being attacked in Hackney then we are a couple of doors along, mostly just out of shot. Although, I have been wanting to check out our roof for a while as we have a leak and the HDTV shots gave me a great chance and happily it all looks good.

Having watched the TV coverage on Monday night, I rode my motorbike to work on Tuesday morning expecting to be met with scenes of devastation. As I went along Cambridge Heath Road and then on to Mare Street I passed groups of people waving brooms and other cleaning equipment. When I got to Mare Street I thought that they were going to be disappointed as it appeared that the Council had already tidied most damage away.

Our immediate neighbour, an independent optician, was completely cleaned out. By which I mean they broke her windows and stole literally everything from the shop. Unlike the big chains that have already reopened her shop remains closed. I don't know if she has insurance or not. But it made me think about what do you do if you couldn't afford to insure the contents of your shop for some reason, which is the position one family I saw on the TV were in.

A quick bit of research and I discovered that the Riot (Damages) Act 1886 allows the victims of riots to recover their losses from the compensation authority of the local police area. This authority should pay out the costs of repair and loss. If you have insurance that does not cover the full amount then the compensation authority will still pay out but less any payment made by the insurance company. I circulated this information around our local press and shops earlier in the week.

It is very important to note; however, that you have just fourteen days to make a claim! This period can be extended to 42-days if you make an application to the compensation authority within the initial 14-days.

Turning now to the final part of the title, which is political nonsense. I was going to call this political bollocks but that somehow seemed too rude... I suppose that doesn't matter now I've written the word in the text.

David Cameron PM, decided to come back from his holiday to offer up some criticism of the police, put out some soundbites, ruin all the other MPs holidays and otherwise not do very much to help the situation. At least Bojo picked up a broom after some face to face heckling.

One thing that Call Me Dave said in Parliament was that police chiefs had admitted to him that there were not enough police on the streets for the first few nights of the rioting. I agree, there weren't from what I saw. But lets just recall that Dave's Government has already cut back on police overtime and shed a number of front line police officers, I think it's 1,500 have gone since he became PM and is proposing the loss of many more - I've just read a suggestion that it could be up to 12,000 less officers! This is a point that I think is lost on some people. Over the past few days I've seen more police officers on the streets patrolling than I have ever seen in my life - not riot police either. Hackney has been full of normal police officers in normal uniforms patrolling on foot. I do not believe for a moment that high levels of policing would not deter crime. I've been saying for years that having more police on the beat will actually cut crime! In the past, I've made suggestions such as employing professional civilian gaolers to man the cells thus freeing up police officers and having dedicated trained civilian interviewers to conduct police interviews and thus free up officers. They did actually introduce this, sort of any way, when they brought in Case Progression Units but they were staffed by police officers, most of whom hated being in the CPU and because it was police officers it didn't free up any officers at all.

Successive Governments have been obsessed with increasing conviction rates, usually by allowing in what has been inadmissible evidence for centuries or by cutting legal aid to prevent people receiving a fair trial. But, what they don't seem to get is that they can cut the legal aid bill by reducing crime! They also don't seem to get the point that high conviction rates are not a sign of a Government that is tough on crime. It is a sign of a Government that allows people to commit far too many crimes! If we had a high conviction rate coupled with a fair and balanced system (which includes equality of arms) where few crimes were actually committed then I'd say the Government is doing a good job. But we don't. We have a system where we have a relatively low conviction rate - depending on offence and the court where the case is heard - coupled with a high crime rate. Basically the Government has got it all arse about tit.

There endeth the rant.

Bloody cheek

2011-07-25T11:53:00.000+01:00

I have just received the most extraordinary letter, which comes signed jointly by Dominic Grieve, Attorney General and member of the Government. The letter says, "We already know that legal aid for people facing legal problems... may be cut and those who cannot afford to pay for advice are going to find it very difficult to seek free legal help."

The letter then goes on to ask for a donation to the Access to Justice Foundation so that the charity can provide free legal advice to people in need.

Not only does the Government want to cut funding and thus put me and my employees out of work but now at least one member of the Government would also like me to fund my own replacement!

Incidentally, my firm does it's share of free work. We regularly take part in things like Will Aid (where solicitors prepare wills free of charge and the receipient makes a donation to charity in lieu of paying a fee). Also, on the 5th August 2011 we will be hosting a free legal advice day at our offices where local people can make an appointment to come and see our solicitors completely free of charge to get some practical advice on dealing with their problems.

Police/CPS do not want to charge

2011-07-14T11:21:00.000+01:00

I have pretty much come to the conclusion that the police and CPS are deliberately not charging people. I have noticed a sharp decrease in charges since the credit crunch began so I can only assume that it has something to do with that.

For example, I have recently seen a case where two men were accused of robbery. They were positively identified by one victim (a lone female whose purse and telephone were taken). They were found in possession of the stolen property from the second robbery. They gave an account that they just happened to chance across two robberies completely by co-incidence and that they found the stolen property from the second robbery. Result: police NFA.

A while ago I saw a case where a boyfriend smashed his girlfriends face in, breaking her jaw and then raped her. Result: CPS NFA.

Yesterday I saw a case where the suspect was found in possession of class A drugs while drunk in charge of a vehicle. I can't quite believe how but, result: police NFA on drunk in charge and caution to drugs.

One man arrested at the door of his ex-partners home, seen by police to be drunk and shouting through the door as he tried to batter it down. Police also witnessed him spit in the complainant's face. Allegation of assault earlier in the evening. Result: police NFA.

Over the Royal Wedding holiday we represented 33 suspects. There was just one lonely charge.

Stratford Mags used to be one of the busiest courts about. My first ever duty landed me with 14 clients. At the start of this year the fewest duty clients I'd ever had there was 8. The last few times I've acted as duty at Stratford I've not had a single punter. Last week I had zero clients in the youth court and the courts were so quiet that they closed some court rooms and moved everything into a single court room! Even the adult duty only had a single punter to deal with.

It seems to me that there are only three possible explanations. First, the solicitors at my firm are of such unrivaled excellence that the prosecutors just fall down in fear at the mention of their names. Secondly, the police are arresting a LOT of people who are completely innocent. Or thirdly there is some edict from on high aimed at reducing the numbers of people ending up in court to reduce costs.

If any police officers or CPS staff have a view about what is happening I would be delighted to hear it.

Oh Crapita

2011-07-12T16:30:00.000+01:00

Capita, they of the multimillion pound failed/delayed IT project (think NHS, HMRC) as well as botched staff administration services at Leicester Hospitals NHS Trust and the BBC where staff details were lost. They also failed to provide sufficient computing systems for the Criminal Records Bureau, which caused lengthy delays. Capita were also involved in the failure of the Individual Learning Accounts following a £60M over-spend. These collective failings led Private Eye to rename the company Crapita.

Imagine how over-joyed I was when I discovered that the Defence Solicitor Call Centre is now indirectly owned and managed by Crapita.

On the 1st July 2011, Crapita purchased Ventura who have held the contract with the Legal Services Commission to provide advice to detainees in the police station and to allocate cases to solicitors since the 1st April 2010.

Let's see if Capita can make less of a pigs-ear of this than they seem to have made of many of their other projects.

What would you do?

2011-06-30T13:10:00.000+01:00

Having just read a set of case papers, I was struck by the reaction of one witness to what he describes as a group of 3 men and a woman viciously attacking a lone man on the street outside his home.

Let's imagine that you wake up in the early hours to see a man taking a serious beating on your doorstep, do you:

1. Watch for 10 minutes;
2. Find your iPhone and video the attack;
3. Hide so that the attackers don't see you at the window; or
4. Call the police.

In this case the man did the first three. He watched for ten minutes then when a break in proceedings came along he found his iPhone and videoed part two taking care to hide so he wasn't seen.

At no time did he think to call for help.

Comparing apples and pears

2011-06-29T18:53:00.000+01:00

I have just listened to the latest Today programme on the BBC website catch up service.

I had to laugh when I heard Ken Clarke accuse the head of the Bar Council of being disingenuous for comparing the legal aid spend in England and Wales with that of our closest neighbours in Europe only then go on to point out that our spend is four-times that of New Zealand.

New Zealand seems like an odd choice I thought. I've never been but I always thought it was quite a small country in terms of population.

When faced with points like that my first reaction is to turn to the CIA for assistance. As ever the Central Intelligence Agency was very helpful in pointing out that the UK (admittedly including Scotland and Northern Ireland) has a population of 62,698,362 while New Zealand has a population of 4,290,347. The CIA also helpfully point out that London has a population of 8.615 million, which while I've never been very good at maths looks like more than twice the size of New Zealand in just one city.

If Ken is right about us spending just four-times more than New Zealand while having a population about fourteen-times larger then I think we're doing pretty well.

Police bail limited to 96-hours

2011-06-29T11:39:00.000+01:00

I have just read a BBC report saying that a court has ruled that the police cannot bail anybody for more that 96-hours or 4-days. The BBC are a little late with this story as it was reported by CrimeLine last Friday, but there you go.

The case, called Greater Manchester Police v (1) Hookway, (2) Salford Magistrates' Court, is a judicial review brought by the police following a refusal by a District Judge to grant further time for them to question a murder case suspect.

CrimeLine's Andrew Keogh (a well known and highly respected criminal lawyer who provides extensive training for much of the criminal law world) described the judgment as "... one of the most bizarre cases I have ever read... ". He goes on to say that he understands the case is being appealed, which is not a surprise.

Before going on, I should explain for those who do not know that when a person is arrested the police have 24-hours in which to question the suspect and make a decision whether to charge the person or not. In serious cases, a police superintendent can extend the time limit and a further extension can be sought from a magistrates' court. The time the police have to hold a suspect is often called the custody clock and it usually starts to tick from the time a suspect arrives at the police station, which in reality often means the time he is booked in by the custody officer.

There are a number of possible outcomes from this case and it is entirely unclear which of them is correct in law. First, the case could apply to all bail cases, meaning that the custody clock continues to tick when a person is released on bail. Secondly, it could mean that it applies to any extension beyond the usual 24-hour period. Thirdly, it might apply only to cases involving warrants of further detention. Finally, the judge could well have just got in a muddle and made a bit of a pigs-ear of the whole thing.

I am a little surprised that the Police and Criminal Evidence Act 1984 does not clearly state whether time spent on bail counts against the custody clock; however, I suspect that since the Act constantly refers to "detention" periods the authors simply thought the point so obvious as not to require explanation. In any event, I believe that s. 47(6) implies that time on bail will not count toward the custody clock as it states that time spent in detention before the grant of bail will count as well as time spent in detention when the suspect answers bail. I also note s.118 of the 1984 Act expressly defines the meaning of police detention and that does not include any mention of time spent on bail.

I wonder whether this will turn out to be a storm in a teacup. I see from paragraph 22 of the judgment that the warrant issued for the suspects detention allows detention for a period "from the time of issue of the warrant". I don't know if this is how all such warrants a phrased as I haven't seen them all, but I suspect that the problem can be solved with a very simple bit of re-drafting.

Are further restrictions on your rights coming?

2011-06-21T16:15:00.000+01:00

The new Legal Aid, Sentencing and Punishment of Offenders Bill has been published.

Clause 12 allows for suspects in police custody to be represented. This is good as the right to free legal advice has been with us for a long time now. A lack of legal advice has also led to convictions being overturned by the appeal courts for various reasons that would not have occurred had a solicitor been present.

However, clause 12 appears to be slightly different to the current position, which allows for representation to be provided quickly for most detainees. Clause 12(6) is concerned with regulations that a civil servant (probably the head of the Legal Services Commission) will be able to make regarding the hoops that must be jumped through before you can receive advice from your police cell. It reads:

Regulations under subsection (5) may, in particular, include—
      ....
      (b) provision permitting or requiring applications and determinations to
           be made and withdrawn in writing, by telephone or by other
            prescribed means,

Does Parliament seriously intend that somebody arrested and sitting in a police cell should be required to fill in a form, submit it to a solicitor who will then pass it to the LSC who will consider the application, make a decision and return the completed application? Bear in mind that the LSC is the organisation that said legal aid applications at their new central processing unit would take just three-days and are now running with a four-week backlog, which is looking like it could become a 6-week backlog very soon as application processing is way behind applications being submitted!

What happens if John is arrested in the middle of the night? Will the LSC be working 24-hours a day? To be frank you're lucky if you get an answer from them before 9.30am or after 4pm at the moment.

Call me cynical, but I happen to believe that this type of policy has two purposes a) to reduce the legal aid bill by making it harder to solicitors to claim; and b) to increase the conviction rate by reducing the level of representation suspects receive.

What is more likely to happen though is that it will simply push up the administrative costs of funding legal aid, which are already very high. It will also lead to more lengthy legal arguments at court to the effect that interviews should be excluded for various reasons. So, in the end it will push up the overall cost of legal aid by simply transferring the payments from solicitors to Counsel with an uplift as Counsel's daily fee is higher than a single police station attendance and increasing the admin costs. There probably won't be much of an increase in conviction rates either as a lot of interviews will simply be excluded. And, I bet there will be a few challenges to this policy through the European Courts at some point, which the Government will have to defend at huge public expense.

Who is failing child sex abuse victims?

2011-06-15T11:08:00.000+01:00

This morning I read a report on the BBC news website saying that Barnardo's claim that child victims of sexual exploitation are being failed by the Criminal Justice System.

There are a number of different offences that you might chose to call child exploitation that range from rape of a child aged under 13 through to causing a child to watch a sexual act. In between are offences such as meeting a child following sexual grooming and abusing a position of trust (which unlike other offences has an age of consent of 18-years not 16-years, so if a teacher had sex with a 17-year-old student with his or her consent the teacher would be guilty of an offences).

In criminal law, to secure a conviction the prosecution must make an allegation (the charge or indictment) and must then prove so that the jury are sure (in old language this was beyond reasonable doubt) that the defendant is guilty of the offence charged or indicted. The proof is shown by producing evidence, which could be the testimony of a witness, CCTV, DNA, fingerprints, financial records, telephone records or pretty much anything else that you can think of. This is the same process for sexual offences as it is for theft or drink driving or anything else.

Sexual offences have long been said to have very low conviction rates both in themselves and when compared to other offences. Some people claim this is because the system is prejudiced and others claim that it is because of statistical anomalies.

Barnardo's chief executive Anne Marie Carrie said, apparently in respect of the CJS that, "we need to see drastic changes to make sure the abusers who control such vulnerable children for sex and personal gain are brought to book."

In the time I have been in practice drastic changes have already been introduced. When I began work a victim of rape, for example, would have to come to court and give evidence live in the court room before the man she said raped her. In fact, it was even permissible for the defendant to cross-examine the victim himself! Even where he did not do the questioning he would be able to see her at all times and many victims found this very uncomfortable and difficult to deal with. Particularly, as at that time it was perfectly lawful for the defence to question her in detail about her sex life in an effort to show that she was promiscuous. Back then previous convictions for similar offences would be very difficult to introduce before a jury.

Today, evidence is often pre-recorded at the time that the victim makes the initial complaint in a special interview room with specially trained police officers asking the questions. These videos are commonly played as the victim's evidence. It is still necessary for a victim to be cross-examined by the defence; however, nowadays the victim can chose whether to give evidence in court from behind a screen where the defendant and public gallery are unable to see her or via video-link or live in court in the normal way. The Defendant is expressly forbidden to cross-examine the victim personally. No questions about the victim's sex life are allowed unless an application has been made before the trial to the judge and I can assure you that it is very difficult to get a judge to agree to such applications and when they do agree questioning is strictly limited. Also, it is becoming increasingly easy for the prosecution to adduce evidence of bad character on the part of the defendant. Bad character could be previous convictions or even previous unproven allegations of a similar and independent nature.

Of course, things could be made even easier for the prosecution quite easily. But, for every change you make that means conviction is easier you must balance that with the likelihood of a miscarriage of justice occurring. My memory of the news as a teenager is characterised by hearing of miscarriages of justice coming to light what seemed to me like every other day. When I first studied law, I was indoctrinated with the maxim that "it is better for ten guilty men to go free than for one innocent man to be convicted" and was taught stories of when the innocent had gone to prison. I'm not sure whether that maxim is still taught, I suspect not.

The problem with prosecuting sexual offences, particularly against children, is that the allegation often doesn't come to light until a long time afterwards by which time there is no forensic evidence. Even in a "stranger-rape" case, if the defendant is saying that the victim consented to sex then the forensic evidence may be of limited value. A typical sex case will be the word of one person against another. Where a jury has to be sure that the defendant is guilty it is quite hard for them to convict.

With the greatest of respect to Barnado's, I think they have missed the point and identified the wrong problem. It seems to me that the job of the Criminal Justice System is, for the most part at least, to mop up the mess when things go wrong.

The real problem is not the lack of convictions but the number of offences being committed. Since I began work as a solicitor, organisations have become more careful about the people they employ; however, checking previous convictions will not inform you of people who are a danger but who have not been accused of a crime before, such as Paul Anthony Wilson who I understand had never been in trouble before he applied for work at a nursery. What needs to be done is for a proper thorough system of supervision to be in use at places where vulnerable children are at risk of being abused. Barnado's themselves have been guilty of failing to properly supervise their staff in the past as a quick Google search of "barnardo sex allegation" will show you. You might also read the excellent blog by Winston Smith, which isn't strictly about this issue but does show the disorganised way in which establishments homing vulnerable young people are managed.

Are the courts failing the victims or should the authorities be doing more to prevent these children from becoming victims in the first place?

Be careful what you wish for

2011-06-09T17:02:00.002+01:00

Following Ken 'The Beast' Clarke's announcement of his policy of reducing sentences for sex offenders by 50% in return for a guilty plea a lot of solicitors and barristers felt that this was a bad idea and that it should be scrapped. Low and behold it now has been scrapped. But where does that leave the lawyers?

There is talk that scrapping this plan will cost in the region of £130 million. This means that the Ministry of Justice will have to find another way to save that money or they could ask the Treasury for a hand out. If the Treasury gives them the money then all the other departments will coming running with their begging caps held out. So, a Treasury bail out looks pretty unlikely to happen; the MOJ isn't a bank after all.

What then are the MOJ to do?

They could scrap the Victims' Commissioner but I doubt that would save much money and would definitely make bad headlines in the Sun, although I know a few bloggers who would be pleased to see the back of Louise Casey. They could abandon the Commission on a Bill of Rights, which to be honest just sounds like a complete waste of time and money - imagine the Daily Mail's reaction to another Human Rights Act style piece of legislation. That might actually save some cash if you look at the make up of the committee.

The problem for the MOJ is that they do a lot of things that either are important or sound important and cutting them will either actually be bad or, more importantly from their point of view, will sound bad.

Of course, they also control Legal Aid. Now while I think legal aid is important I know a lot of people disagree and are happy for defendants to be unrepresented or inadequately represented at trial (well until it's them or their child in the dock that is). Further cuts to the legal aid budget would probably help the MOJ anyway since less money means lawyers have to try to handle more cases and thus pay less attention to what they are doing and so the conviction rate goes up. Frankly, it's a win win for the MOJ, they cut funding to people that hardly anybody cares about anyway and they can shout from the roof tops about how they are bringing more offenders to justice! Plus, as we saw with the new assault sentencing guidelines less people will be sent to prison in any event and when they do go they'll get shorter sentences so there will be very little increase in costs for the prisons.

So, while lawyers may have got what they wished for they may now have to pay the consequences.

I know what you're thinking by the way, "typical lawyer always looking out for himself". What else would you expect?

Edit - barely minutes after posting this, I discovered that I'm not the only one thinking it.

Edit 2 - clear Mr Clarke is a fan of this blog and doesn't want me upset as he has just ruled out any further cut to legal aid.

Waiting game

2011-06-06T10:31:00.001+01:00

I arrived at court bright at early this morning to represent my client for GBH.

It's 10.30am now and there's still no sign of any prosecution papers or the client who is being brought from the police station. Also, they claim we have a judge but no sign of one yet!

In the old days we got paid to wait so I wouldn't have minded the delay so much. But these days we travel and wait for free.

Edit - after writing this I realised that in fact as this is a hearing known as a section 51 transfer, we don't get paid for any part of it whether it's travel, waiting, preparing, advising or conducting advocacy. As I arrived about 9am and left court around 2.45pm that's quite a bit of free time I contributed. Who said that solicitors don't give good value for money?

Advocates to be assessed by judges

2011-06-02T16:18:00.001+01:00

The Solicitors Regulation Authority have today approved a scheme whereby advocates will be assessed by the judges before whom they appear.

This is an interesting decision for a number of reasons.

First, the scheme has attracted widespread criticism from judges who a) don't want the extra work; b) object to being asked to undertake a lot more work for no extra pay; and c) do not necessarily have any advocacy experience themselves, or their experience is from decades past (okay they don't admit to the last one but it's a very real point).

It is also interesting for the SRA to approve this scheme since it appears to undermine part of their function, which is to regulate solicitors rather than allowing judges (most of whom are not solicitors) to conduct a significant portion of that regulation.

I also find it a difficult decision to stomach as a number of judges are hostile to solicitors conducting Crown Court advocacy. This is an attitude common at the Bar, just the other week I was in the robing room at Snaresbrook Crown Court when I overheard a QC telling his junior how pleased he was to have a barrister as a junior - he commented that his last junior had been a solicitor and said that he was a very competent advocate but that he just doesn't like solicitors doing advocacy. An opinion he had neglected to mention when accepting the Brief! In late 2009, HHJ Gledhill QC took umbrage at a number of solicitor-advocates who appeared before him. He criticised them heavily saying they were not up to the job of representing their clients (although he decided that they weren't so incompetent that he could use his powers to stop the trial and he glossed over the fact that one of the inadequately represented defendants was actually acquitted!). In early 2010, HHJ Gledhill QC was forced to "express his regret" for his completely outrageous behaviour toward the solicitors. Personally, I thought that Gledhill's behaviour showed a distinct lack of sound judgment, a character that is looked for in Judges.

I have had quiet conversations with judges over a few drinks where they have been honest enough to express their dislike of solicitor-advocates, although always saying that they would always treat a solicitor fairly and wouldn't admit their real position openly.

Given the open (and often hidden) hostility from some members of the judiciary I really am surprised that the SRA have agreed to this plan.

Amnesty

2011-06-01T16:24:00.000+01:00

As I sat in Richmond Mags Court this morning I thought of a topic for a really great post. Unfortunately, I have since forgotten what it was, so instead I will simply mention that last Saturday Amnesty International celebrated it's 50th birthday. I've been a member for a number of years, although not terribly active in the past couple if I'm honest.

If you have time to write a couple of letters once a month or can help in any other way then check out their website and join them, I think it's about £24 for what I think is a lifetime membership.

Respecting the police could end in your arrest

2011-05-24T15:26:00.000+01:00

Last Friday night I had been out for a drink with a couple of friends (ironically one of them a PC from British Transport Police). After we left the pub on the Strand, I decided to walk up to Buckingham Palace and catch a cab home. On the way, I stopped to look at the memorial to police officers killed on duty that can be found just past Admiralty Arch on the Mall.

Apparently, paying your respects to police officers who have been killed is highly suspicious activity.

A couple of minutes later as I walked up the road toward the Palace, four police cars descended on me and the officers within demanded to know what I was up to as they'd had a report from a CCTV operator that I was acting suspiciously. My ID was checked and I promise I've never been so relieved as when I heard the words "no trace" come across the radio followed by confirmation that I hadn't done anything to the memorial.

I mention this story partly as an amusing story but also as a reminder of what paranoid times we live in.

PC to be prosecuted for manslaughter

2011-05-24T15:15:00.000+01:00

In a brave decision, Tim Owen QC has advised the CPS and Keir Starmer in particular that PC Harwood should be prosecuted for manslaughter over the death of Ian Tomlinson. I say brave as they may both now find themselves facing the ire of police officers across the country.

I am not quite sure that Keir Starmer meant when he said that the inquest had allowed "a degree of clarity to emerge" regarding the medical evidence. It sounds as though he is saying that the medical evidence wasn't clear when the CPS took their original decision not to prosecute. If that is the case it rather beggars the question: "Why didn't they CPS seek clarification prior to making the original decision?"

Bail in criminal cases

2011-05-17T14:10:00.000+01:00

Following the remand into custody of Dominique Strauss-Kahn the head of the International Monetary Fund, I thought I'd say a few words about the subject of bail.

There have been some high profile cases where serious crimes have been committed by those on bail, for example Police Inspector Gary Weddell who was released on bail for murder and subsequently committed another killing or that of Garry Newlove, who was murdered by a gang, one of whom was on bail.

In England and Wales, section 4 of the Bail Act 1976 entitles a suspect in a criminal case bail except in certain circumstances or where the suspect is charged with treason, some form of homicide or rape. The main three reasons for refusing bail are that the court has a real fear that:

the defendant will commit further offences while on bail;
will fail to surrender to bail; or
will interfere with witnesses or otherwise try to obstruct justice.

When considering bail, the court is required to consider the prosecution case from it's strongest angle and no consideration is given to the defence case unless it impacts upon the strength of the Crown's case, e.g. the defence are in possession of forensic evidence that undermines the prosecution case.

A defendant can put forward arguments and agree to do certain things to persuade the court that he will attend court, will not commit offences and will not interfere with witnesses, these are called bail conditions and breaching any of them allows the police to arrest the defendant immediately and bring him or her to court where the defendant may lose his bail and be sent to prison to await his trial.

In the case of Dominique Strauss-Kahn, according to one BBC report he was arrested while boarding a plane to leave the US for Berlin. That fact alone would give any court in England or Wales cause to suspect that he was a flight risk and refuse him bail. Although, I suspect that he probably would have been released had this happened in this country, albeit on bail to surrender his travel documents and with a surety or security (former is where somebody promises to pay £x if the defendant breaches his bail and latter is where the money is paid up front and only returned once bail has been complied with) and some other bail conditions. You can watch the prosecution's submissions against bail and if you are interested in what happens in an English court then it's a good video to see, while the layout is completely different everything else is pretty similar; note the huge collection of papers to the prosecutor's left and that it takes him a while to get into his stride causing him to repeat himself a few times as he sounds like he might be about to flounder, which is probably thanks to having only seen the papers a few minutes before the hearing began and having 30 other cases to prepare at the same time. Just like this country.

I went to see somebody today in prison who is accused of robbery. He insists he didn't do it and I have to say that the evidence against him is weak. I made the point at the bail application that the case is relatively weak and the judge agreed. However, bail was refused because this particular client has made a habit of breaching his bail and the courts have simply run out of patience with him, so now he gets to spend time in prison for something I actually think he didn't do.

The big problem with bail is that it will never be perfect... note that, it will NEVER be perfect because it is a decision made on the spur of the moment by somebody who really doesn't know much about the defendant or the allegation. The trouble is that there really isn't much you can do to improve this situation, not unless you are going to say to hell with the cost and increase the size of the court, probation and prosecution services by a factor of 100 so that they can all take time to properly investigate and consider ever bail application before them. Even when those resources are thrown at a case they are not always successful. In the case of Inspector Gary Weddell, Dr Tony Nayani gave a psychiatric report about the risk of Weddell committing suicide. Neither the fact that Tony was only asked whether Weddell was a suicide risk nor that it was another six-months before Weddell committed his next offence stopped the press from hauling the doctor over the coals so much so that Tony Nayani eventually killed himself. Now, I should say I am a little biased in this case as I knew Dr Nayani (at one point I was even going to do a clinical placement in preparation for a Doctorate in Clinical Psychology with him before I decided to become a lawyer).

One alternative is to simply lock everybody accused of a crime in prison. But, trials can take a long time to come around and what if it was your son or daughter locked up for something they didn't do? What if it was your boss put on remand for 10-months causing you and all your colleagues to lose your jobs and ultimately your family to lose their home... does locking everybody up accused of a crime still sounds like a good plan?

So, bail is something that really never will be perfect and will always attract headlines when it goes wrong.

Changes to motoring offences

2011-05-16T12:23:00.000+01:00

The Government recently released its Strategic Framework for Road Safety, which looks at the causes of serious road accidents, identifies areas that need to be developed and introduces some sensible and not so sensible plans for driving offences.

Fixed penalty notices

The most talked about plan is the continuation of Tony Blair's policy of excluding the courts from the Criminal Justice System through the use of fixed penalty notices and effectively turning police officers into road-side prosecutors, judges and juries.

The latest batch of fixed penalty notices will allow police officers to punish careless drivers with an on the spot fine. The Framework gives two reasons for this change. First:

"... to make it more efficient and less time consuming for police to enforce."

Sorry to any officers reading this, but if we render that sentence into plain English, it would appear that the Government are suggesting you are all too lazy to take cases to court. The second reason is:

"... [to] enable more people to be offered rehabilitative education... "

With the greatest of respect to the Government, this reason doesn't make sense. Why must further education go hand in hand with a fixed penalty notice? Why, for example, can't the courts offer this training after prosecution? Oh hang on a minute they do already do that.

More importantly than that from a drivers point of view is that the Framework also makes clear that the Government plan to increase the fixed penalty fine from £60 to £100 for virtually all fixed penalty offences, including speeding etc.

Drink and drug offences

The Framework also contains plans, albeit not very advanced plans, to level the playing field as between drink and drug driving offences. This is partly a technical issue about developing and using tests to identify people suspected of driving under the influence of drugs. There are however changes that also show more Blairesqe thinking in their approach to prosecuting offences.

Currently, if you are breath tested and blow within 40% of the prescribed alcohol limit then you are offered the option of a blood test to confirm the level. There is a very good reason for this, which is that blood tests are far more accurate than the breath test. However, under the proposals in the Framework, drivers will no longer have the right to take a blood test if they blow below 40% of the limit. The explanation given is that it will "... increase the effectiveness of police enforcement activity... ", although you may also read this as "it's one less hurdle for us to get over on the road to improving conviction rates." They do also make the good point that it is unfair to let some people get off because there is a delay in getting a properly qualified medic to take the blood sample; so, no more star jumps in the cell while you wait for the FME then.

Interestingly, the Framework goes on to explain that there will not be a decrease in the drink drive limit as 40% of offenders are more than 2.5 times over the limit. If that is the case, then I don't fully understand why they need to remove the blood option as they themselves seem to think it will hardly affect anybody.

Increased level of forfeited vehicles

The Framework moves on to express a desire that the police will make more use of their powers to seize vehicles used by people who commit road traffic offences, but it does not provide any particular suggestions as to how this could be achieved.

Uninsured and unlicensed drivers

I imagine that it is fairly obvious why unlicensed drivers are involved in a disproportionate number of serious crashes, but it may not be so obvious why uninsured drivers are similarly involved in high numbers of serious crashes.

Personally, I put the reason down to being that people willing to take the risk of not buying insurance are more likely to take the risk of driving more dangerously than others... I heard a policeman put it in terms once that people who commit one type of crime tend to ignore other areas of law as well.

This part of the Framework contains some interesting proposals... one so interesting that I'm surprised Liberty aren't complaining about it. The Framework suggests allowing insurance companies access to persona information about drivers from the DVLA database so that they can make a more informed decision when offering insurance to us. This means they'd be no hiding place for people who 'forget' to declare convictions. I don't personally mind this, so long as the insurance companies cannot make changes to the DVLA database - I say that after having to contact my biker insurer to tell them that since I took the policy out two years ago they have managed to change all of my details for no obvious reason, so according to them I now had only lived in the UK a couple of years, am married with no children and have no convictions for speeding, one of those at least is nice.

This is one area where they have clear plans about seizing vehicles and the Framework states that from June 2011 the Continuous Insurance Enforcement will fine people and seize the vehicles of those who fail to insure their vehicles without first notifying the DVLA that their vehicle is off the road (a SORN declaration).

Conclusions

The Framework is quite a lengthy document that combines details of problems, with half-thought out ideas and a sprinkling of actual solutions that will become law.

The important thing to take away is to remember:

If you are offered a fixed penalty notice then take legal advice before sending the form back to the court. You may find you have a defence or could save yourself the expense of fighting a doomed case;
Remember to buy that insurance before your old policy expires or you could find yourself with a fine and court bailiffs trying to seize your car.

I'm drowning in forms

2011-05-09T13:46:00.000+01:00

We hear in the press a lot about how the police have too many forms to fill in, but one of the reasons that solicitors fees can cost a lot is because we have way more to keep track of.

I have just updated our forms database for weeks 13 to 18 (which is a five-week period if you can't be bothered to count) and various government departments have either introduced or amended 734 forms. Most of the time these are simply pointless updates that do nothing of any substance, for example, the CDS14 is the form to apply for legal aid and is now in it's ninth edition after being introduced about three-years ago. Now bearing in mind that the merits criteria for granting legal aid has not changed in 45-years since it was recommended by Lord Widgery in his 1966 review you might wonder why the LSC needs to release so many updates to its forms. You might also wonder whether government organisations could better use public funds than paying teams of people to re-draft forms so frequently.

Incidentally, the questions on the CDS14 form that deal with whether a case is serious enough to merit legal aid have not changed at all in my career, all that has changed is the amount of superfluous information required, such as whether the client is a man or woman; black, white or some other colour, etc.

It's also worth remembering that the Coalition Government promised to reduce the amount of red tape for businesses and even went so far as to say that they wanted Britain to become one of the easiest and fastest places to set up a new business in the world. I've yet to see any reduction in red tape.

Wasting time

2011-05-05T11:09:00.001+01:00

I am currently in court where my client is ineligible for legal aid and says he lacks the funds to pay for his defence privately. He has found a lawyer he wants to represent him, me. Because of the nature of the allegation he is not allowed to cross examine the complainant. An order under s. 36 of the Youth Justice and Criminal Evidence Act 1999 would allow me to cross examine the witness on his behalf even without legal aid. However, for some reasons the court wants to list a second hearing to decide whether a solicitor should be appointed to handle the cross examination.

I don't see what is going to change between now and then. The only thing that this delay does is causes the witness concerns about who will be questioning her and adds yet another hearing to an already overloaded court list.

Ironically, the clerk who advised the bench to delay their decision spent the adjournment moaning about how busy the court list is!

Tomlinson unlawfully killed

2011-05-03T17:35:00.000+01:00

The BBC are reporting that Ian Tomlinson was unlawfully killed when a police officer hit the newspaper seller with a baton and pushed him to the ground.

Should the officer now face charges?

There are a few potential charges:

Common assault;
Assault occasioning actual bodily harm (ABH);
Assault occasioning grievous bodily harm, s.20 (GBH)
Assault occasioning grievous bodily harm, s. 18 (GBH)
Manslaughter.

All forms of assault are basically the same; all require an assault (usually by way of battery). The difference between the offences is the level of injury caused to the victim. So, common assault there will be little or no injury. The injury needed to get home on an ABH is defined as being "more than merely trifling" and GBH is commonly accepted to involve the breaking or both layers of the skin, although you'd probably find yourself facing a GBH charge if you smashed somebodies skull in without killing them

The difference between the two types of GBH is that s.18 requires an intention to cause the injury, while s. 20 can be committed where the injury was caused recklessly. This is an important distinction as it goes to whether the defendant set out to really badly hurt somebody and is reflected in the sentences available with s.18 carrying life imprisonment while s.20 carries a maximum of 5-years.

I doubt the CPS would ever be able to prove the men rea for s.18 GBH, which is that the defendant intended to cause the injury, so we are left with possible charges of s. 20 GBH, ABH, common assault or unlawful and dangerous act manslaughter.

It is difficult to say whether the prosecution could have charged with an assult requiring injury without knowing what injuries were caused. However, the officer could have been charged with common assault except that the Director of Public Prosecutions took so long to make a decision that the statutory time limit for bringing that charge expired (common assault can only be tried in the magistrates' court and thus must be charged within six-months of the commission of the offence; whereas the others can be tried in the Crown Court so no time limit applies).

Now, unlawful and dangerous act manslaughter requires that somebody has died as a result of the defendant's actions and that those actions were both unlawful and dangerous. This used to be a charge used when a dangerous driver killed somebody but as the manslaughter bit sounds quite bad juries had a habit of not convicting so the Government of the day introduced the charge of causing death by dangerous driving. Now, I will say that apart from one appeal case (that is now reported in Archbold) I have never had any contact with this type of manslaughter as it's quite an unusual thing to charge somebody with.

Could the PC be guilty of unlawful and dangerous act manslaughter? Well, in Andrews v DPP [1937] AC 576, Lord Atkin said that the act must be more than merely negligent, he gave the example of a speeding driver and said that driving is legal. Driving becomes illegal if you exceed the speed limit. The law must distinguish between "an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal". So, we ask the question was the PC's action more than careless and positively unlawful? In light of the jury's finding it seems the answer must be "yes". You could mount a defence on the basis that as a police officer who believed himself to be in danger he genuinely thought his actions were lawful, but more on that later.

So, we ask the question was the act dangerous? This is a question for you to answer, because in the case of Church [1966] 1 QB 59, Edmund-Davies, LJ said that dangerous meant that the unlawful act "must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm". It is worth noting that it is irrelevant whether the defendant realised that his actions would cause harm, in DPP v Newbury [1977] AC 500, Lord Salmon said, "... it is unnecessary to prove that the accused knew that the act was unlawful or dangerous". That was also the view of Lord Lane, CJ in the case of Ball [1989 Crim LR 730. This is what you could call an objective test - I think in tortuous law they refer to this sort of thing as the Man on the Clapham Omnibus test, which is where you ask yourself what an average chap who travels on public transport might make of a given situation. It also eliminates the possibility of a legal defence being put forward on the basis that the officer believed his actions to be lawful; although, it does not prevent a legal defence on the basis that the officer's actions actually were lawful.

In the case of Mitchell [1983] QB 741 the defendant hit A who fell onto an elderly lady breaking her leg. The Court of Appeal held that the defendant's actions were indeed both unlawful and dangerous. Is hitting somebody with a baton unlawful? In the normal course of events it is and the jury clearly believed that the officer's actions were unlawful. Is hitting somebody with a baton such as all sober and reasonable people would inevitably recognise... the risk of some harm resulting therefrom? Again I think the answer is yes. In light of the jury's verdict could the PC be charged with manslaughter? Yes.

Before deciding whether to charge, the CPS must apply the Code for Crown Prosecutors In the PIS stage the decision maker must decide whether bringing charges is in the public interest or whether the public are better served by turning a blind eye - the recent guidance by the DPP that people taking loved ones abroad for euthanasia will rarely be prosecuted is an example where the authorities have indicated they might ignore a crime.

I personally doubt that the PC will be the subject of a manslaughter trial and am inclined to the view that to so charge him would not be in the public interest as I have my doubts whether he would be convicted.

If there is evidence for an assault charge that may well be forthcoming, but I think the most likely outcome is that the matter will be left alone.

Taking the piss

2011-04-30T10:23:00.000+01:00

I saw a man working at a riverside juice bar yesterday wearing a high visibility jacket with the words, "Community Payback" on its back.

I can only assume that either he or somebody else sentenced to do unpaid work stole the jacket during the sentence... now that is taking the piss!

Speed kills... just not that often

2011-04-28T14:08:00.001+01:00

What I am about to say may well be controversial to some; however I think it is well worth saying: speed is no where near the main cause of accidents in the UK.

It is worth taking the time to think about what we mean by the claim that "Speed Kills". Do we mean that going very fast will kill you? If so then that is demonstrably rubbish. The fastest I have ever driven a car is 180MPH (at Silverstone race track before anybody suggests I would ever exceed a speed limit). I have travelled at close to 600MPH and despite both I am still alive. Others have gone much faster and lived to tell the tale. So, speed itself is not a killer. How then does speed kill? Well, the culprit is not speed but inappropriate speed. I accept that the warning "Inappropriate Speed Kills" may not have the same ring to it.

The Institute of Advances Motorists has just released research on the various contributory causes of accidents and I have to say that the main causes are far more frightening that going too fast.

The top three causes of accidents are given in the executive summary as being:

Driver error, which appears to come down to not looking properly or thinking about what is happening around them accounted for 68% of all accidents;
Injudicious actions accounted for 26% of crashes; and
Behaviour and experience factors accounting for 25% of accidents.

This doesn't add up to 100% because there can be multiple causes to any given accident.

Looking at the summary charts we see that for car drivers simply not looking where they were going was the largest single accident cause at 18.6% It is closely followed by failing to judge others path or speed at 10.4% Surprisingly, travelling too fast for the conditions accounted for just 5.6% of accidents.

I will quote direct from the report:

"Many of the issues which receive the most media coverage are not actually among the most common contributory factors. Speeding, drink driving, mobile phone use, tailgating, road rage and bad weather are all important but are not as frequently reported as driver errors;
• ‘Exceeding the speed limit’ (13.9% of fatal, 7.2% of serious and less for slight)
• ‘impaired by alcohol’ (10% of fatal and 7% of serious accidents, less slight accidents)
• ‘aggressive driving’ (8% of fatal accidents, less serious and slight accidents)
• ‘slippery road - due to weather’ (11% of slight and 8% of serious accidents but less
frequently reported in fatal accidents)
• ‘sudden braking’ and ‘following too close’ (8% of slight accidents each, but less
frequently reported in fatal and serious accidents)
• ‘Driver using mobile phone’ (0.8% of fatal crashes, but only 0.2% of all injury
crashes)
• Vehicle defects are recorded in very few cases (2%)."

The message seems to be that speeding will make an accident much worse and that you are more likely to kill or be killed if you drive too fast, particularly in places that are unsuitable for high speed. However, the one thing everybody can do to reduce accidents is to LOOK WHERE YOU ARE GOING!

As a motorcyclist the report seems to agree with my personal observations. This morning two people cut across me as I was riding along minding my own business and caused me to take evasive action; neither I nor they were exceeding the speed limit or travelling too fast for the conditions. Two near misses each way to work and back is by no means exceptional, more like its average because people simply don't bother to look properly or at all before they manoeuvre. If we really want to cut down on road deaths and accidents I personally think that the only way is to have regular re-assessments of driving and prevent those who are not up to it from getting behind the wheel. And I say that knowing just how much I would HATE to have to take another driving test.

Incidentally, I did see an accident this morning. A man on a moped was too busy arguing with a van driver to notice the van in front of him stop and the moped drove straight into it. Wouldn't have happened had the rider pointed his face in the direction of travel.

Emergency

2011-04-27T13:07:00.000+01:00

Every now and then the police release their most extraordinary 999 calls for us to laugh at and, presumably, learn when not to dial 999.

We solicitors also have emergency numbers for clients who have been arrested and need urgent advice, usually outside of normal business hours. At least that's what I thought the emergency phone was for. My clients' families usually think it's for something different.

I've had the emergency phone for the first time in a little while this week and so far have had a number of people calling in the middle of the night believing that when this is just another line to the office and that all of the solicitors sit together in the office in the dark during the night... at least I assume that's what they think when they phone late at night asking to speak to X, Y or Z and then seeming surprised that the person they want is not with me in bed. Last night, I had one genuine emergency from a man arrested for an assault he said he did not commit and two calls from people wanting to speak to other solicitors in the middle of the night.

One old favourite was a few years ago from woman who called at 3am to enquire what time she was due in court the following morning... assuming either that I live in the office or have memorised the diary. The most interesting thing about these calls is that the people who make them always assume that you know who they are without being told and some get quite angry when you ask their name.

About eight-years ago a lady called me over the weekend to ask whether I could get her son out of prison as his grandad wasn't feeling well. I actually tried and actually managed to speak with the governor but she politely refused the request.

One woman a few years back called me demanding to know which prison her son was in. "Do we represent him?" I asked. "No, he has his own solicitor" she replied - I think she said that the other solicitor wouldn't speak to her. She was livid when I told her that not only did I not know where her son was but I had no way of finding out at 11pm. She screamed at me to find somebody more industrious to help her and was genuinely surprised when I informed her that since she was screaming at me I wasn't going to help her at all.

I did once get a call from the dad of some girls who had been arrested for pick pocketing (I say dad although he was more like the Fagin character from Oliver Twist), all he could tell me was that they had been arrested and he thought they were in the south-east of England... but not London!! We actually managed to find them after a few hours and represented them!

Technology is not the answer

2011-04-26T10:09:00.000+01:00

I admit that typing the above title seems ironic given that I am sitting in a coffee shop waiting for my motorbike to be repaired while typing using a wireless bluetooth keyboard into my iPad and am connected to pretty much all of the information known to our species thanks to WiFi technology that I barely dreamed possible as a child. So, maybe I should be more specific as to what exactly it is that technology is not the answer to.

Techonology is not the answer to all/many of societies problems; however, I am going to suggest that technology is a wonderful way of making it look like a) you care about something; and b) you are doing something about the thing that you care about.

Anyway, the point - yes there is one - is that the Government is now talking about requiring all dog owners to have their doggies microchipped to reduce the number of aggressive dogs on the streets and the number of dog attacks.

This is a classic example of politicians logic (for those who didn't watch "Yes Minister" and "Yes Prime Minister", politicians logic goes something like, "Cats have four legs; my dog has four legs therefore my dog is a cat". Or, more useful when addressing a problem, "This is a problem and something needs to be done; this is something we must do it").

Requiring the mircrochipping of all puppies shows that a) the Government cares about dog attacks; and b) they are doing something to reduce them. But, can a simple microchip do this? I assume the thinking goes along the lines that if people are required by law to spend money on taking their dog to the vet then a number of things will happen: 1) they will get advice from the vet; 2) the expense will put bad dog owners/breeders off of getting/breeding a dog; and 3) people will realise that having a dog is a responsiblity. Unfortunately, this assumes that 1) people will listen to the vet's advice; 2) bad dog owners/breeders will bother having their dogs chipped; and 3) people will suddenly become responsible for having spent around £35.

Yesterday, I went into my local Tesco Metro where a man was waiting by the entrance shouting at his friends who were inside the shop. One of the things he shouted was that he was forbidden to enter the store because the security guard knows that the man in question likes to "rob" from Tesco; he seemed proud of the fact. He had a dog. He may well be a responsible dog owner. But, let's assume he isn't. Does anybody really and truly believe that for somebody who is proud to announce to a store full of people that he is a known thief a charge of £35 and five-minutes of advice from a vet would suddenly reform him? Would having a microchip suddenly turn him away from the irresponsible and into a model member of society? If he ignores the law on theft, would he be any more likely to follow the law on microchipping? I suspect not.

How would this law be enforced? Presumably either with the recruitment of new council dog inspectors or giving the police microchip readers and opening them up to more queries about whether they have no better things to be doing. What if the dog owner refuse to allow the chip to be read? Will the police have the power to physically force the owner to comply? I think that could just cause more problems than it solves. Even if anybody is ever prosecuted, I bet that the maximum sentence would be little more than a Level 1 or 2 fine.

So, what is the result of compulsory dog microchipping? To my mind it seems to be more expense both for the individual and the public and no observable improvement in the behaviour of dog owners.

The last Government had a scheme just as silly but far more expensive, which was to track all motor vehicles at all times and then charge the owner per mile travelled. Again that was an example of a Government wanting a) to show they cared about a problem (environmental change); and b) that they were doing something about it. Nobody seemed to want to point out the obvious that we already pay per mile we drive and that we already pay more when we sit in traffic than when moving and that we pay more the larger our vehicles engine... how's this? Because we pay tax on petrol and we use more the further we drive, more when we sit in traffic and the bigger your engine the more you will use up!

Welcome Learned Friends

2011-04-20T12:56:00.000+01:00

I would just like to take a moment to welcome My Learned Friends at the Bar of England and Wales to the officious world of the Legal Services Commission - a true bureaucracy that has no purpose other than to create more red tape and expense.

Quite recently, the LSC took over the handling of the Advocates Graduated Fee Scheme (basically how the Bar gets paid for Crown Court work). Previously, such things were handled by a single or sometimes small team clerks at the Court where the work was conducted and payment would be authorised and made within a short time-scale of a few weeks in most cases. From my own experience, the court staff were usually efficient, friendly and made few mistakes - if they adjusted a bill they were right 9 times out of 10. My own experience of the LSC (who have been handling all types of solicitors claims for years) is that they are almost never efficient, staff may or may not be friendly and they make a huge number of mistakes - for example, I recently had a bill reduced because the page count was reduced "as per the evidence YOU sent us", so said the scawled note on my bill. I returned it pointing out that they had failed to include two whole schedules of evidence when they did they sums. That bill was originally submitted in January and as we approach May I am still waiting to be paid! This is normal.

I am now hearing lots of complaints from the Bar that their bills are not being paid and that they feel like the LSC are calling them liars... all I can say is welcome to my world where solicitors have put up with this attitude from the LSC for years.

Members of the Bar, just wait until the LSC starts telling you how to do your job despite not having any legal qualifications or ever having stepped foot inside a court room, because they love to say that whatever you do for your clients was unnecessary (like reading the evideince against them, taking their instructions, etc).

Expert witnesses

2011-04-19T15:52:00.000+01:00

There are whisperings of a crackdown on expert witnesses in the form of a toughening of the rules governing the evidence they give to the court.

Currently expert evidence is governed by Rule 33 of the Criminal Procedure Rules as well as by the guidance issued by individual governing bodies, for example this is the General Medical Council's advice. Other less well regulated areas have different, less or no real guidance for 'experts' to follow. Even where guidance exists that doesn't mean it will be followed well, properly or even at all!

A few years ago, I was counsel in a big cultivation of cannabis case where one of the central issues revolved around an accounting ledger written partly in English and partly in Vietnamese. There was a dispute over whether a particular word translated into "grass" or "aunty". The Crown contended the word was "grass" and referred to cannabis sales. The Defence line was the word meant "aunty" and related to a loan repayment by the defendant to his aunt. The prosecution produced an "expert" in the form of a Vietnamese translator who was very bad and whom we were able to tear apart. So, the next day they found another translator who did manage to support them. So, we responded with our own expert report that concurred with us that the word was "aunty". Thinking about it, I don't think our expert was all that honest as a) she knew the co-defendant and had discussed the case prior to giving us the report but 'forgot' to mention that fact; and b) she fled the country when told she had to come to court to give evidence! Proper quality expert... just the sort our justice system needs.

Now, before a lawyer can stand up in Court, he or she must complete several years of training plus on the job training and post-qualification training as well as completing yearly update courses. A typical expert does not need to show any of this training and certainly in the case of translators and other such un-regulated experts they don't always need to have any training at all because the Courts quite regularly don't bother to make any checks whatsoever. That is how people like Gene Morrison and Godwin Onubogu was able to give evidence in court.

But, bogus experts aren't the only problem that the courts face. Other respectable, educated and fully qualified experts frequently get a bee in their bonnet about something or worse become so entrenched in their thinking that they forget to question the evidence and reach conclusions based on the evidence rather than arriving at a conclusion and then looking back for the evidence.

In one case my firm covered, the financial expert continually said he needed more and more disclosure from the Crown. When his report finally arrived, it was clear that he hadn't needed 80% of it and was simply trying to inflate his own bill.

A friend of mine holds a doctorate that has something to do with the analysis of pollen (I don't pretend to fully understand it at all) and I have regularly advised him to take up expert witness jobs as they pay rather well. He refuses because he says that the handful of other experts currently in the UK spend more of their time trying to discredit each other than conducting any useful science and he doesn't want to be involved in a public slanging match in the courts and in his industry publications. He describes the two main experts as "useless" but so loud that people listen to them.

When I recently required the services of a forensic paediatric pathologist I discovered a small problem. There is only one such person in the UK, Professor Risden, and he gives expert reports exclusively to the prosecution - he will not accept an instruction from the defence was the result of my enquiries... very independent you might think. Finding a forensic pathologist is relatively easy until you mention that a child is involved, at which point it becomes very hard to find anybody willing to act because of the mud slinging that goes on between the experts who work solely for the prosecution and the others.

As an example of the sort of thing that goes on I will quote from a statement given by Heather Kirkwood to an English court. Mrs Kirkwood is a US attorney who is licenced to practice in Washington and Texas. She has approximately 20-years practice experience and she swore a statement that at the Eleventh International Conference on shaken baby syndrome she witnessed Detective Inspector Welsh from the Metropolitan Police Service give a talk entitled "A National Co-Ordinated Approach to Cases of Non-Accidental Head Injury in the UK". She describes the co-ordinated approach thus:

"Shortly into the talk, I realized that the "national coordinated approach" referenced in the titled of the talk was essentially a description of the joint efforts of New Scotland Yard, prosecution counsel, and prosecution medical experts to prevent Dr Squier [sic] and Dr Cohen [two medical doctors who questioned prosecution evidence and were the subject of anonymous complaints to the GMC] from testifying for the defense on their findings in specific cases as well as on their published and peer-reviewed research."

The matter of what happened at this conference and the situation with Dr's Squires and Cohen are whole topics in themselves and I mention them only to give an illustration of the world of expert evidence, which is often thought of as a lofty idealistic arena where scientific evidence is examined and conclusions drawn based solely on facts not egos or fixed notions of what is scientifically "right".

There does need to be action taken to increase the quality of evidence given by experts. One big step would be for the courts to become involved far earlier and to have a major hand in the appointment of witnesses. Civil courts make a lot of use of single joint experts (where one independent expert is agreed upon and instructed jointly) and although provision exists for this in the criminal courts the reality is that where expert evidence is called by one side to show X another expert will be called by the other side to show Y. Experts are supposed to be independent of the party who instructs them, but it is remarkable how many times a prosecution expert agrees with the prosecution case and a defence expert agrees with the defence case. One solution might be for the prosecution and defence to both submit a summary of their case to the court and for the judge to draft questions for the expert to address to avoid influence from either side.

A final and very simple step that could prevent bogus experts and ensure that all experts are up-to-date could be for all witnesses to show evidence of their qualifications to the court each time they come to give evidence.

Bullet proof vests for sale

2011-04-19T11:37:00.001+01:00

On my ride to work I often pass Dallas Clothing, a slightly odd clothing store in Whitechapel. I say it's odd because the entrance is a small doorway that leads to what I assume to be a shop in a windowless area above a beauty saloon called Afreen.

This morning, I noticed a sign on the door advertising bullet proof vests and gloves. Call me an old cynic, but I can only think of one reason that you'd want to be buying bullet proof vests and that is because you are somebody closely associated with gun crime... in which case, I wonder whether simply leaving a store that sells such equipment would provide reasonable grounds for a stop and search under s. 1 PACE?

Appeal

2011-04-18T12:06:00.000+01:00

Seems that the DDP has decided to move onto my territory and has started advising people to appeal their convictions.

I don't really have much to say about this, except to wonder why the protesters have not already received such advice from their own solicitors?

No wonder pubs are closing down

2011-04-15T15:17:00.000+01:00

I regularly hear how pubs are closing all the time and that is something that genuinely worries me as I happen to quite like pubs! But, given the comments of Daniel Griffiths when discussing how two gay men were thrown out of a Soho pub for kissing I'm not surprised that pubs are being shut down if his establishment is as authoritarian as he makes it sound.

Maybe the landlord of the John Snow and Samuel Smith brewery (owners of some of the worst pubs in the UK and produces of some truly horrific beers) don't like gays in their establishments but then maybe they should have thought twice before opening up shop in Soho... for those who haven't visited Soho it's not overtly gay like Brighton or Canal Street in Manchester but it is a place where you will find just about anything and everything happening and like as not you'll see as many openly gay/lesbian couples as you will heterosexual couples.

All I can suggest to James Bull and Jonathan Williams is to try anywhere in Covent Garden and particularly the Retro Bar, which is down a tiny alleyway off the Strand.

Why Scouting for girls is like criminal law

2011-04-15T09:09:00.001+01:00

I'm watching BBC Breakfast and they have a piece about the fact that more girls than boys have joined the Scouts this year for the first time ever.

It's good news for the Scouts that they remain so popular, but it got me thinking about the funny way that sexual equality works.

When I was a boy the Scouts were exclusively for boys - the handbook may even have still been called "Scouting for Boys". While I was still a member the UK leadership changed the rules to allow girls to join, but left the choice of whether to admit girls to individual troops. We had just one enquiry from a girl and the leader asked us to vote whether the troop should admit girls. The vote was a unanimous no and as I remember the main reason was because we all just wanted somewhere we could all go that was just for us boys (I was about 10 at the time so maybe the reasoning wasn't quite so clearly defined as I recall).

Something that has always intrigued me is why there was a call for the Boy Scouts to admit girls but no similar call for the Girl Guides to admit boys. I'm pretty sure that many people would say "well, boys wouldn't want to join the Guides", but that was exactly what we all thought about girls before they were allowed to join the Scouts!

This kind of positive discrimination can be seen in other aspects of our society. For example, when I studied A-Level law our teacher asked the class to vote on sentences. By a majority of about 20 to 3, the class voted to give a lower sentence to a woman than a man where both were convicted of the same crime. Even now, my advice to female clients is that although in theory they should be sentenced on the same principals as their male counterparts, in reality the risk of their going to prison is far lower.

This isn't limited just to sentencing, it can also be seen in the way the prosecution present their cases to juries. A few years ago I defended in a conspiracy to cultivate cannabis case where two husband and wife teams were said to have been running cannabis farms on an industrial scale. It seemed to me that they were all in it together, but the prosecution went after the husbands so much that the wives defence barely had to say a word throughout the case.

In another example, three people were accused of money launder. The woman was found with all the cash (approx. one million pounds cash) and all the banking records in her home. She was also observed making deposits into bank accounts as part of the laundering activity. She was caught out lying several times during interview about her activities, land ownership etc. Her boyfriend and his nephew were just seen making deposits. The prosecution placed her last on the indictment and went for the two men with gusto. Both men were convicted but our client, the woman and brains behind the operation, was acquitted.

Is any of this right or wrong? Is it just in my imagination?

Legal aid boosts the number of lawyers

2011-04-05T21:07:00.000+01:00

According to the Daily Mail, the UK now has more lawyers that police officers because of legal aid.

One of my favourite hobbies is to flick through my mum's copy of the paper and show her that everything is definitely the fault of the Jews and anyone with a slightly dusky skin tone... how silly am I going to look next time I do that and it turns out that all the ills of the world are now my fault?

No doubt the Mail's stories are always rigorously researched, but in this case something is quite wrong. For a start apart from the headline and an incorrect claim that the Law Society opposes cuts to legal aid, when in fact the LS have suggested cuts of £384M compared to the Government's cuts of £350M (they only oppose what is being cut not the cuts themselves), the story doesn't appear to be about legal aid at all, not that the Mail makes that clear.

The Mail points out that there are 165,000 lawyers compared to 142,000 police officers... is that a complaint about legal aid or about the Government not providing sufficient officers?

What the Mail forgets to mention is that just 6% of the 165,000 lawyers actually practice legal aid (that's 9,900 by the way) and that the number of legal aid firms has fallen by more than 60% in the past 10 odd years (down from 5,000 to less than 3,000). Those simple numbers seem to give lie to the claim made in the headline.

The Mail appears upset that local authorities employ "around a dozen [lawyers] per council". Local authority lawyers may do many things from advising the council about contracts to prosecuting benefit fraud. One thing they never do is legal aid work. I also note that they don't mention that every police force has it's own legal department that employs more lawyers than the average legal aid firm. Nor do they mention the largest law firm on the face of this planet, which is called the Crown Prosecution Service! They also forget to mention that the Daily Mail itself employs a whole legal department.

On the subject of trainee solicitors, the Mail points out that the average trainee earns £26,327 per year. Look at the article and you'll notice that they are no longer talking about legal aid lawyers; they are talking about ALL solicitors (but not barristers). In fact, the Law Society sets the minimum salary for trainees at about £14,000 per year and if you can find a trainee in a legal aid firm they'll be on a salary much closer to that than to £26K. If you look at the Gazette you may still find a few ads for newly qualified solicitors in legal aid firms... if you do then outside London the salary offered will probably be around the £19,000 mark and in London between £22-24K.

Law is just like anything else, Norman Foster and my mate Barry are both architects, but Barry doesn't earn anything like Norman Foster.

Finally, I wonder how much the Daily Mail really understands about lawyers (I've dealt with their legal department before and their own lawyers are very good... maybe they should interview them before writing these stories). I note that they describe barristers as elite lawyers. I qualified as a barrister and I can assure you that there is nothing elite about the Bar in general; they are simply a different type of lawyer just as a legal executive or notary public is a different type of lawyer. In fairness, that is a misconception held be many members of the public - a client recently insisted that we instruct a barrister to represent her at a sentencing hearing. The barrister cost £1,000 (more than my firm was paid) for a hearing that lasted about 20 minutes. The barrister was an inappropriate choice who called my office to ask us about the law! So much for elite.

Anyway, the point of this post is really this: love lawyers or hate them, I don't really care but make your decision based on the facts not the rubbish written in the press by journalists who really don't understand their subject area.

Job searching

2011-04-05T20:18:00.000+01:00

After watching the news where they discussed the plight of the unemployed over-50's who are trying to get back into work and reading something similar in the Law Society Gazette about prospective trainees who have trouble finding work I thought I'd mention my recent search for staff.

There are a two jobs on offer, first for duty solicitors. There's no upper limit to how many we'll employ at the moment. We have adverts in all the local court robing/advocate rooms and are putting an ad in the Gazette. So far we have had zero applications.

The second job is for a 3-day a week receptionist/office junior. We ran a single small ad in the Evening Standard for one day only. At the last count we had received approximately 1,200 applications. The vast majority of the applicants have been wildly inappropriate (e.g. people massively over-qualified, those living in inappropriate places by which I mean it would cost them more to get to work than we would pay them such as Brighton and Pakistan, we've also had quite a few applying to be waiters, cleaners, chefs etc. but not receptionists). Of the remainder, I am told that a large number have said that they are not willing to work in Hackney, which is unfortunate as that's where we are based. Very few people have bothered to add a covering letter and those with covering letters are usually non-specific general non-sense that clearly hasn't been thought through properly.

The problem with having so many applicants is that we just haven't been able to properly consider even half of the applicants. Will all the applicants get a reply? Definitely not, we would have to employ somebody else just to respond. Will we miss some excellent applicants? Probably.

Another one bites the dust

2011-03-31T12:01:00.001+01:00

At the time of the expenses scandal, I watched a rather odious performance by Jim Devine on the Channel 4 news where he made some rather absurd claims about the nature of his expenses, which to my ears sounded like an admission of guilt to a number of offences.

He has today been gaoled for 16-months by HHJ Saunders at the Old Bailey. Considering this was a case involving a gross breach of trust and the creation of forged documents (which takes the offence beyond simply making a false claim) I think he should be pretty pleased with the sentence.

The Bribery Act is coming soon

2011-03-30T15:52:00.001+01:00

If you run a business or conduct business in England and Wales then I hope you are ready because the new Bribery Act will come into force on the 1st July 2011 and it will affect you.

It will create a handful of new offences; but while the offences may be few they will be wide ranging and very powerful carrying sentences of up to 10 years imprisonment.

You may find yourself criminalised for what you currently consider trivial or even normal and good business practice. One of the main problem areas will be where to draw the line between business entertainment and bribery. A few weeks ago, a barristers clerk took me out for lunch, drinks and dinner (I think I paid for dinner but it's all a bit hazy by that point). We ended up in a casino and he paid for my gambling. Obviously, he was looking to promote his Chambers to me and get me to send work their way. Now depending on your views, this could be normal entertainment or it could amount to bribery under the new Act. There's no hard and fast rules so each case will be decided according to the views of those on the jury.

Let us assume that my little adventure did amount to bribery, who is guilty and facing prison? Well the clerk is, obviously. But, so am I because I accepted the bribe. But assuming the clerk is the employee of Chambers then the barristers Chambers (and potentially its members) are guilty of an offence as well even though they may have known nothing about our little trip. This is because of section 7 of the Bribery Act makes it an offence for a commercial organisation to fail to prevent bribery.

Let's look at another example. You run a business and you need to buy some supplies (it doesn't matter what exactly). You look at a couple of suppliers but there's not much to separate them until one happens to mention that he has some spare tickets to a big football match that you and your kid want to go and see. You thank him kindly for the tickets and place an order. The other supplier gets wind of this and makes a report. You could find yourself being guilty of an offence under s. 2 (accepting a bribe). But, if it was somebody associated with your business and not you who accepted the tickets and placed the order you could still be guilty of failing to prevent the bribe occurring under s. 7... it's a tough Act to avoid getting muddled up with.

As a sign of how seriously lawyers are taking this new law that the vast majority of us have formed policies to deal with this new Act and avoid becoming criminals ourselves! If lawyers pay attention to something then it must be serious.

While not trying to blatantly plug my services, if anybody does want/need some advice about this then please feel free to contact me!!

No win, no fee

2011-03-30T15:26:00.000+01:00

While generally it is true to say that solicitors are incapable of ever being wrong, I do have to question this solicitors take on a case that went against him.

A conditional fee arrangement allows a solicitor to charge more than his usual fee if he wins a case and not to charge at all if he doesn't win; they are better known as "no win, no fee" cases.

The Courts and Legal Services Act 1990 sets out very clearly what is required to make a valid CFA. Section 58(3)(a) says, "It must be in writing". I don't provide CFAs (because s. 58 of the CLSA bars their use in criminal cases); however, it took me less than 2 minutes to work out that the arrangement described in that article is invalid and to find the law that states it to be invalid... so I am surprised that a solicitor with 32-years experience would find the judge's ruling to be "absurd". I can only assume that he has been mis-quoted.

Sentencing assaults

2011-03-18T13:02:00.000Z

The Sentencing Council has published new guidelines for dealing with assault cases in Magistrates' Courts. The new guidelines are much more comphrensive than the old ones. Broadly speaking, offences are split into three levels indicating the seriousness of injuries suffered and the culpability of the offender. The court must then consider any aggravating or mitigating factors before selecting an appropriate starting point for sentence. The court then must go through various steps that increase or decrease the sentence before arriving at a decision.

Will this increase sentences? Er... no.

Let us look at assault with intent to resist arrest. Under the old guidelines there were three levels of seriousness and the starting points went:

Low level community order;
High level community order; and
Crown Court (which means that the case is too serious for the magistrates to sentence because the sentence exceeds their maximum 6-month imprisonment power).

The new guidelines for the same offence are:

Band B fine;
Mid level community order; and
26-weeks in prison.

The position with ABH is similar, although these offences are often heard in the Crown Court so these guidelines don't apply. For ABH, the middle offence sees the starting point rise by 2-weeks in prison to 26-weeks custody while the least serious form of ABH drops from a high level community order to a medium level community order.

Assault on a police constable in the execution of his duty follows a similar drop; this is a summary only offence that can only be heard in the magistrates court. The old guidelines gave the following starting points:

Low level community order;
High level community order; and
18-weeks in prison.

The new guidelines are:

Band B fine;
Medium level community order; and
12-weeks imprisonment.

It may not be entirely fair to compare these starting points side by side because the old guidelines took a slightly different approach to working out the starting point and the new guidelines are far more comphrensive than the old.

Here's a link to the new guidelines and here are the complete Magistrates' Court Sentencing Guidelines as used in courts every day, which is where I took the old starting points from in this post.

IT

2011-03-18T11:19:00.000Z

A few years ago the Met police spent a fortune upgrading the computer systems in all its custody suites... I say upgrading but what I really mean is introducing computers since they didn't seem to have any at all before.

I don't know what has happened - and nor it seems do the police engineers - but I understand that all of the custody suite computers have been out of action (certainly at every custody suite anyone at my firm has attended) for the last week. This is a big problem as most of the stations cannot tell who is due to answer bail to them and when they are due, which really means if you don't bother showing up then the police may not realise!

These computers are all very clever but this wouldn't have happened under the old pen and paper system... then again maybe I'm just getting old; my first interview at the police station was a all day handwritten record of interview job!

Not enough cash to charge suspects

2011-03-17T14:58:00.000Z

Before a suspect is interviewed the police will usually disclose the basic facts of a case to the suspect's solicitor, which is one of the best reasons for having a solicitor by the way!

There are rumours flying about that the CPS are refusing to authorise charges of suspects because of budget constraints - I most recently heard this the weekend before last at a party from a Met police officer and again last Friday from a BTP police officer at a Chas and Dave concert (I have high musical tastes!)

Consider this piece of disclosure in a theft case, "LBH have produced CCTV evidence which shows the offence... The defendant is currently on bail for two like offences... [and] has 14 previous convictions for theft offences..." The disclosure also makes the point that a CCTV operator witnessed the offence as it happened, which is how the police came to be called.

I cannot comment about whether the CPS are deliberately refusing to charge, but in this case the CPS refused to charge and the matter was "no further actioned".

Youth Offending Team

2011-03-17T14:48:00.000Z

In January I dealt with a 17-year-old girl who had been arrested for something she hadn't done but then proceeded to write her name several times on the cell walls in pencil. Her mother attended, told her off and offered to make her rub off the pencil marks. The original reason for her arrest was dropped by the police but she was charged with criminal damage as the Youth Offending Team (YOT) would not authorise a reprimand.

In December 2010, a colleague asked the YOT to review this again with a view to giving a warning or reprimand as it seemed like over-kill to give somebody who had never been in contact with the police let alone the courts a criminal record for such a minor offence.

Unfortunately, the YOT didn't seem to want to do anything. So, when I went back in January it was adjourned again to give them some more time. I've just looked at the file. It was finally resolved at the end of February after five adjournments for the YOT to make a decision! At the final hearing they still hadn't made up their minds but the client entered a guilty plea and received an absolute discharge - which is the lowest "sentence" a court can impose and means that the case is over and the court recognises that the defendant does not deserve punishment for the offence!

A reprimand could have been issued in December, to all intents and purposes it would have been the same thing as an absolute discharge but would have saved the lawyers fees on both the defence and prosecution sides as well as a lot of court time (six hearings in total) as well as the time of the police and others.

Given that this is how that particular YOT office handle a kid who isn't a real trouble-maker I think it's no surprise that you see the same kids in that court week-in, week-out.

The Truth About Hiring a Criminal Defense Lawyer

2011-03-11T15:07:00.000Z

The sharp-eyed among you may have noticed the deliberate Americanisation of the word "defence" in the title. That's because I wanted to share this interesting and amusing piece called The Truth About Hiring a Criminal Defense Lawyer, which was written by an American lawyer called Brian Tannebaum.

I don't agree with every word, but for the most part I think it's spot on.

I just wish that UK lawyers could charge such huge fees for our work (minimum of $5,000 for a guilty plea drink driving case over there, while today I represented an Ambasador's wife for assault and was paid less than £500 for her guilty plea)... oh well, I can dream.

Women in prison

2011-03-11T14:28:00.000Z

I stumbled onto a copy of "Working with women prisoners" on the Prison Service website while looking for a copy of the Prison Rules.

One of the most remarkable things that stood out in the document for me is the table of who is looking after the women prisoners' children while they are in prison.

Just 9% are cared for by their fathers; while 8% are in care. A relatively massive 24% go to grandparents and 17% to a "female relative". So, almost twice as many children are cared for by a general female relative as opposed to by their dad.

From my own experience, it is far more common for me to deal with a youth who has little or no contact with his dad than it is to deal with one who has regular contact with daddy. I've also dealt with a few who have no contact with their mums and they are often the most screwed up kids of the lot.

I was never a fan of the old Tory governments witch hunts against single mothers, but I do think that a lack of family cohesion has a lot to do with crime.

Complaining is easy

2011-03-03T14:20:00.000Z

For reasons that do not matter I have had to make a crime report to Northamptonshire Police. Now, my office is nowhere Northants so I thought I'd visit the website for help. I know on other police sites reporting crime is easy.

With Northants, I can easily make a complaint about a police officer - that's on the front page. I can easily access their pages on various social networks - there's a huge ad for those on the front page. I can also find out all sorts of interesting things like what the police helicopter has been up to, where the mobile speed cameras are going to be through the month (which seems to defeat the point of them) and I can find out what the police do; I had assumed I knew, but apparently I need to watch the "Force video", read the "Mission Statement" and research the "Command Structure" to fully understand what the police do.

Nowhere on the front page can I see how I might report a sodding crime!!! I checked "Contacts" still nothing there about how I can make a written crime report. There is a number for enquiries but that's about it.

I have eventually found that if I click on a link marked "Forms" then I magically find a way to report crime.

It's almost as if they don't want to mention the word crime. Crime only merits a single mention in the "What we do" section and I've counted a total of 8 mentions on the whole website (three of those being references to Acts of Parliament where you can have your say about them and other Government schemes).

In the end the crime reporting I did find was quite poor and we'll see if I ever hear back about it.

Maybe I'm old fashioned or out of touch or both, but all I really want from the police is for them to do things that prevent crime and arrest those who commit crime. I'm not interested in finding out what their helicopter is up to. I don't really want to go to the Facetube site and am concerned that they are paying people to sit around managing all this rubbish.

Pay restraint

2011-03-02T14:04:00.001Z

I've just come across this story about plans to cut police pay.

It seems to me that the Government needs to think about what is important to the people and therefore what is important to it.

If I am in dire fiscal straits then I must consider whether I pay off my bills in any particular order. I could pay all my credit cards and over draft off first while ignoring my mortgage. The end result might be that I end up with no debt quickly because my personal debts are covered and the bank takes my house away to pay off the mortgage I owe them. But, the problem is that I am now homeless. A better solution seems to be to decide what is important to me. Maybe it is better that I pay my debts slowly but have somewhere to live at the end of it.

This is the same problem as the Government faces. Does it slash all public spending to the bone, pay all the debts but risk leaving the country in an appalling state at the end of it? Or does it have a realistic look at what is important to the country, ensure that those important services are looked after and then pay off the debts over a longer period of time?

If the Government wants to cut police pay (either in real terms or literally) then they may find it is harder to recruit. London and BTP officers are quite well paid, but outside of London and the pay is pretty piss poor from what I am told.

For what it's worth, I happen to think that the police, like the fire brigade and some people in the NHS (sorry but I cannot accept that all the managers and non-medical staff are necessary) are important to this country and that the Government should not destroy those services now to save a few pennies.

This is what they call a penny wise, pound foolish.

Over charged by $10? Then you need a lawyer costing $1.44M

2011-02-25T12:22:00.000Z

This morning the postman dropped a letter through my door from a US attorney in the case of Sobel et al v The Hertz Corp et al, which was sent to me by my in-laws who are asking me what they should do about it.

Basically, the notice informs customers of Alamo Rent a Car that they could be entitled to compensation for a charge that was erroneously added to a number of bills between 2007 and 2009. This is called a class action and it seems that my in-laws must actively exclude themselves from the action to avoid having anything to do with it.

According to the notice three teams of attorneys have worked tirelessly on this case for four-years and will be making a claim for a little over $1.4M from the defendants. The total compensation they are negotiated is one voucher per customer of Alamo allowing the customer a whole $10 off any future car rental taken in the next 18-months.

Brilliant, so for a cost of $1.4M they have negotiated a settlement worth $10 to their clients. In so doing, they have also taken up time over the past four-years of a Nevada state judge who acted as mediator in this case. I'm sure people hear about these stories from the US and form opinions that all lawyers the world over take cases that any sensible individual would be told, "looks it's terrible that they overcharged you but is it worth your effort and expense suing these people?" In this country, a complaint to trading standards would probably be a better and more proportionate response than lawyering up.

We don't have class actions like this in England and Wales and I was always taught that they are a bad thing, although having seen the bill in this case I'm starting to come around to the idea of introducing them!

Incidentally, I recently damaged my car while driving out of my son's nursery on a steel plate that had been installed on a speed bump by the gate. I was more than a little surprised when everybody who read my tongue-in-cheek status update on Facebook told me to sue the nursery. The repair cost me a few hundred pounds and maybe I could have sued - but where would it get me? I get my money back, the nursery, which is already being considered for closure, has to pay out more money it can ill afford. Potentially, the nursery closes, my little boy can no longer go to a nursery he loves and we have to send him somewhere that came a distant second when we were chosing a place for him. People believe the adverts when they say "where there's blame there's a claim". Yes, there maybe a claim, but rushing to law is not always the best way of settling a dispute.

The yes/no game

2011-02-17T14:20:00.000Z

Over the past 9-months or so it's become increasingly common for me to read police station attendance notes that say "call from officer to say ready for interview; attend station and am informed client no longer requires rep, has seen inspector and now in interview. Returned to office." Basically, this means that a suspect has been asked by an officer, "would you like a solicitor?" and the suspect has said, "Yes." But at some later stage (for some reason it's usually between us being told the police are ready to interview and us arriving at the police station), the suspect changes their mind and decides to be interviewed without a solicitor. The most remarkable instance of this was a call from Stoke Newington saying they were ready to interview. We actually had a solicitor at the station at the front desk. In the few minutes it took for us to contact the solicitor and him to speak to the front desk, the client had changed his mind about wanting a solicitor!

If suspects want to do that then fine, I don't have a problem with it. But, it's the number of times it's happening lately that makes me very suspicious whether police officers haven't gone back to the old trick of telling suspects, "you'll wait hours for a brief," or "if you have the interview now you'll be out in half and hour," etc.

This is a cycle that we seem to go through every few years of suspects being told not to wait for a brief, we complain ad nauseam to the commissioner/cheif constables and then it stops for a few years.

When I started out it seemed like officers didn't really want to screw people over unfairly. I remember one of my first cases was a burglary. The young lad was terrified (literally shaking in the interview), the officer was very tough and did a proper interrogation (not unreasonable or wrong I should add just tough). The officer and I spent most of the interview arguing. After interview, I was asked to wait in the front office and shortly after the tough officer appeared with an inspector saying that the client had said he didn't want a solicitor any more. To his credit though, the tough officer was the one who said to the inspector that he didn't think the client should be left without a solicitor and was asking that I be allowed back in to speak with him again! I can't imagine that happening these days.

Am I wrong? Any police officers reading this fancy putting me straight if I'm completely wrong about this?

Centralisation of legal aid

2011-02-14T12:08:00.000Z

Between today and the 25th April 2011, HM Court Service/Legal Services Commission will be moving the administrative job of granting (or refusing) legal aid application away from local courts in London to Havering Mags Court.

This doesn't sound very interesting and probably that's because it isn't. But, it is a big waste of money that is being done for very short sighted reasons.

The hope, as is the hope with everying the LSC/HMCS do, is that centralising the work will mean quicker decisions reached at a lower cost. But, it will not work. It will cost more than the old system.

Previously, if you as a member of the public needed legal aid you could complete a form and hand it in at the court where your case was to be heard. This was changed slightly last year when courts were clustered so that if you had a case at Redbridge Mags, for example, you had to hand the form in at Highbury Corner, which is just up the road.

Highbury quickly became the least efficient admin centre the world has ever know. In fact at one point, a month after submitting an application for funding in a murder case I still had no response and the only way I could get a decision was to threaten to have the court manager summoned to appear before the Recorder of London at the Old Bailey to explain the delay!

All of the courts currently handling legal aid are less efficient than they were when each court handled it's own work.

The new centre at Havering will be even worse.

This is annoying for solicitors but it's not the end of the world. But, the delays caused by legal aid will mean cases are put back and the outcome will be delayed. Solicitors don't get paid extra per hearing (despite the urban legend that we are all delaying cases to get more money); however, for each case that is delayed that means another case is delayed while it waits in line behind the delayed case. This means less court time is used to reach effective outcomes (i.e. having trials, sentencing people, entering pleas, etc) and more time is wasted pushing up costs for the courts and CPS and delaying justice for victims and those who have been charged despite being innocent!

MPs legal aid bill

2011-02-11T14:21:00.000Z

I have just read in the paper that the cost of MPs legal aid bills were "increased substantially after they attempted to avoid criminal proceedings by claiming the ancient right of parliamentary privilege."

I am not sure how that happened since criminal legal aid for solicitors is based on the number of pages served by the prosecution and how many days the trial lasted. Any legal submission would not have counted toward either the page count or the number of days trial.

Counsel would have received a little more money for the hearings, but I think we are talking in the region of a few hundred pounds rather than "substantial" amounts.

Student fees

2011-02-11T13:31:00.000Z

I have just read in the Times that ministers are considering barring universities from charging top fees.

When I was a student and tuition fees were first introduced by Labour it was obvious to me that eventually the fees would rise well above the £1,000 cap that then existed. When the current Tory/Liberal government increased the cap to £9,000 it was obvious to me that anyone who could get away with it would charge that fee, if not across the board then pretty damn close to it.

So, having allowed universities to charge up to £9,000 per annum, why is the government now complaining that institutions are planning to charge as much as they can? It's a bit like saying to an MP "you have a £50,000 expenses allowance, but you must not claim all of it". It's just not going to happen.

Real-life cinderella

2011-02-09T16:12:00.000Z

I read in the Times today about the case of a real-life cindarella (because of the paywall I cannot link to the Times, so here is the Australian Telegraph's reporting of the story).

I don't know if the accusations are true or not. But, sadly they are nothing I haven't come across a dozen times in case papers and in other newspapers in the past.

Sadly, the most unusual thing about these allegations from my experience is the lack of sexual abuse.

Everybody knows somebody who knows somebody who has had a run in with social services over their children and has thought how terrible social workers all are for intruding in their lives. But, when people act like this towards their own children I find myself asking whether social workers shouldn't be more intrusive!

Brilliant Royal Mail

2011-02-02T12:16:00.000Z

Today I am mostly thinking how amazing our postal service is.

I have received a letter from a magistrates' court that has our name mis-spelt, gives the wrong street with no building number at all, lacks any mention of the city and has no post code on it.

Yet some how Royal Mail have managed to deliver it to us within a week of its being posted!

Bugger justice

2011-01-27T13:28:00.000Z

Following the Second World War the Government of the day thought that it would be a jolly good thing if people had access to the legal system so that they could protect themselves from wrong doing and make life for everybody better. For example, in the 1960s if a husband and wife split up, the wife had few if any rights to the family home etc. That changed when a wife who had been the victim of domestic violence and who had been told by the High Court that she had no right to stay in the family home as it was in her husband's name, was able to bring a case before Lord Denning in the Court of Appeal where Denning told the legal world, and every judge that had come before him, that they had misunderstood the law and that the wife had every right to the house and that it was her violent abusive husband who would not be allowed to set foot in there again. That one decision advanced the rights of women more than most things I can think of.

One important aspect of the legal aid lawyers work is the protection of children through the family courts. Now I'm not suggesting that there are lawyers out there jumping into violent homes to physically protect children; what I mean is that the lawyers in those cases work hard to reach agreements and settle cases in court so that children maintain contact with both parents and live as happy and normal a life as possible. We have all seen reports of what happens when things go wrong, children abducted and taken abroad, one parent (usually the father) goes mad and hurts himself or his family, etc. Ignoring the extreme cases, when things go wrong they can have a devastating affect on the child who loses contact with mum or dad; or who grows up knowing only spiteful conflict and then goes on to repeat the mistakes of his parents in future.

The repercussions of things going wrong in those cases can be immense. So, it was with a great deal of surprise that I read in this week's Law Society Gazette that the Government is seeking to withdraw legal aid in private law family cases, except where domestic violence is alleged. If you read the short report you'll see that lawyer's who work in these cases on both sides say that this increases the risk of child abductions and false allegations of violence.

You'll also read the most chilling words I've ever seen in the Gazette, "The government's own impact assessment of the changes acknowledged that the reforms may lead to 'less fair' outcomes and 'increased criminality' where family disputes escalate, or people use unlawful means to resolve problems." Okay, so it's not exactly a Steven King novel, but think about the meaning behind those bland words.

"Less fair" means not just or put it another way the system will produce injustice
"Increased criminality" sounds a lot like code for people making false allegations. At any rate it is an acceptance that people who would never be classed as criminals will become criminals because of the Government's actions.
"unlawful means" can only mean that the Government accepts that people will commit crimes as a result of this proposal. These aren't petty crimes either, these are full on major incident crimes that if you want to worry about cost savings will lead to far more expense each year than leaving the system alone. Crimes such as child abduction requiring massive resources here and abroad.

Let's just re-write that paragraph into plain English, "The government's own impact assessment of the changes acknowledged that the reforms may lead to injustice for children and families and may increase both false allegations of domestic violence and actual violence and child abduction as a result of family disputes escalating."

The Government, the people charged with making ours and our children's lives better and protecting ours and our children's safety and security are taking actions, which even the Government acknowledge will push up crime against children and will lead to children not receiving justice.

This is the true cost of legal aid cuts.

Just for the record, I do not practice family law and will not be effected by any cuts to family legal aid.

Control Order Lite

2011-01-26T16:10:00.000Z

The BBC have this story on their website about the Government's new Terrorism Prevention and Investigation Measures (aka T-PIMS, which just sounds like a mobile phone company to me).

I don't have any immediate comment about these orders aside from the observation that there doesn't seem to be very much difference between these and the Control Orders that they replace. It does strike me that if these people are seriously dangerous and the authorities know it then there must be a better system for dealing with them, such as bringing them to trial. Maybe you think that is naive of me and that the Security Services must protect the sources of their information. You may be right; I don't know. I do know that the police manage to operate a large and highly secretive (unless you go to my basement where you'll find the informant handling manual!) intelligence system that utilises data from a wide range of sources from super grasses to rumors heard on the street. If you ever find yourself involved in a large scale gang fight that results in a murder you will quickly see the scope of this intelligence network as officers effortlessly produce information about who knows who in a given area, where people were seen together, what nicknames (or streetnames if you prefer) people are known by. If you hear on the news of a big incident and then that 25 people have been arrested shortly after then you are probably seeing the result of this huge intelligence database.

My point is that the police manage to handle all this information without revealling their sources, in fact I once saw a DI told by a judge that he had to answer a question from Counsel about the informant handling system, the DI looked at the judge and said, "No". So, if the police can do it, why can't the Secret Intelligence Serivce & Co.?

Another point occurs to me: if the people on control orders really are as dangerous as the Government says then why aren't the Government keen to find someway to lock them up in a prison that won't be criticised as breaching the Human Rights Act, e.g. by holding trials? While I never trust any politician, I do believe that they must believe these people are very dangerous otherwise I'd have thought the new lot would have accused the last lot of being scaremongering fools.

For me at least, this debate really is a catch-22. I don't have enough information to come to a proper conclusion so I'm forced to rely upon the advice and decisions of those who do have the information; however, I don't trust the people making the decisions as they refuse to reveal any detail about why they have reached their decisions.

As one court closes another one opens

2011-01-26T13:51:00.000Z

I attended Stratford Magistrates Court today. I like it there. I can park my bike easily, there is a reasonably spacious advocates room to change in and the staff are friendly, helpful and efficient.

On arrival I was told I would be in court 11 before a lay bench. This surprised me as after many years of attending Stratford I have only ever found 10 courts. I went to court 10. Left was court 9. Right is the stairs. Opposite is the probation office. Nowhere is there a court 11.

I asked for some help and was directed to the 'canteen' (an amusing title in itself for a large room with half a dozen tables but only two chairs and a vending machine) where I found the court in full swing. Three magistrates, a clerk, defendants, lawyers... all sitting in the canteen. Much to my disappointment, the vending machines had gone so no coffee or chocolate for me.

Fire extinguisher throwing student gaoled

2011-01-11T13:31:00.000Z

I have just read this story on the BBC News website.

That he went to prison is no great shock and he should just be grateful that he did not hurt or kill anybody else he'd have been facing a far longer sentence.

It frightens me how people can lose control and do something stupid in a moment of madness. I once represented a student from the London School of Economics who had come from a good school and had excellent prospects until he caved in a man's head with a brick - the man survived but only just!

I don't know if I can say I'll never lose it and do something stupid, but I do my best to stay out of trouble.

Cash forfeiture and the meaning of draconian

2011-01-11T13:09:00.000Z

I was due to represent a client in a cash forfeiture hearing this week, although it has been called off at the last minute. But, I thought I’d take the opportunity to say a few words about these proceedings.

The point of the various financial seizure/forfeiture/confiscation orders is for the authorities to deprive criminals of cash found in their possession. There are a few ways this can be done. Confiscation proceedings follow a conviction for certain offences, such as drug dealing, money laundering, etc. Put very simply, in confiscation proceedings the prosecution must show that a) the convicted criminal has benefited from crime to a value of X; and b) that he has realisable assets (in other words has cash or can sell goods) to the value of Y. The court will then make an order that the defendant owes X but that he must pay Y wherever X is greater than or equal to Y. Obviously if he can pay the total benefit figure (X) then he must pay that. Failure to make payment can result in more time in prison. Confiscation is not concerned so much with the source of the funds being confiscated as it is with the benefit that the criminal has derived from his crime.

Cash forfeiture is different and less widely known among the general public. It focuses on cash, literally notes and coins, found in someone’s possession. Possession, in this context means under his control, so it doesn’t have to be on his person but could be in a safe at home or (as in my case) locked away safe and sound in a security box at the bank.

The cash can be restrained initially by the police and then by order of a court. Subsequently it can be forfeited if the prosecutor can show that the money is the proceeds of a crime or is to be used in the commission of a crime. So, if a drug dealer has earned it or was planning to buy more drugs to deal then it can be forfeited.

I, and many other lawyers, say that cash forfeiture is draconian.

If the police arrest Mr Smith and accuse him of drug dealing (for example, although cash forfeiture is by no means restricted to drug offences) then they must produce evidence sufficient to make a jury certain (we used to say “sure beyond reasonable doubt”) that Mr Smith is guilty of the offence. It is a high burden for the prosecution to achieve and it is right that it should be so because a conviction will likely result in prison, damage to a person’s reputation and future legitimate employment prospects, not to mention that the convicted person is then easy prey for a confiscation hearing.

Cash forfeiture requires no conviction and, in fact, does not even require that there be criminal charges contemplated let alone proved. An application could even be made where the defendant has been acquitted, although I imagine the magistrates’ would consider that highly probative evidence.

Cash forfeiture is a civil matter, which means that instead of deciding a case “beyond reasonable doubt” the magistrates (for these are always heard in the mags court) must decide whether it is more likely than not that Mr Smith either obtained the money through crime or intended to use it for a crime. In effect, they must decide on whether he is a criminal. This will have the same effect on his reputation, although he may not have to reveal it to an employer in future and he stands to lose his money.

Simply the massive reduction in the standard of proof may be enough to call this draconian, but then we look at how Mr Smith can defend himself against these actions. He can either represent himself against highly trained and professional investigators and highly experienced lawyers in a very technical area of law or he can instruct a solicitor. Fine, you may be thinking, he goes along to see The Defence Brief, gets some lovely legal aid and everything will be okay. No. Legal aid is not available for these proceedings so he needs to pay privately for representation. Hang on a minute though; the police have already seized all his money. No problem, we’ll ask the court to release some fund to pay for the lawyers. Nice try, but no the court has no power to release funds to fight the application.

Where then does this leave Mr Smith (who may actually be innocent since he hasn’t been convicted of anything)? Well it may leave him in a lot of trouble.

In my case, there is no suggestion of drugs but there is a somewhat unique explanation for the source of the money that is backed up by another party (and witnesses) claiming the cash belongs to them. It’s so unique that I’m not even going to hint at it here. The other party is represented by a solicitor who normally haunts the High Court and who has absolutely no experience of this area of work. Personally, I think they may yet crash and burn because of their choice of representation, but that’s another matter. I have tried to explain to that solicitor that the purpose of cash forfeiture is to get the loot, not to afford the owner of the money a particularly fair hearing. I don’t think he believed me at the time, but he seems to be working it out the longer this drags on.

You can make up your own mind whether you think it’s draconian or not. For my part, I wouldn’t object if the forfeiture requires proper proof to the criminal standard, but that is exactly why cash forfeiture is used: because the prosecution are struggling to prove to a criminal court beyond reasonable doubt that the defendant has done anything wrong!

Facebook

2011-01-11T12:04:00.000Z

I recently read a lengthy interview with Mark Zuckerberg, the founder and CEO of Facebook, in which he explained his views on privacy. Paraphrasing somewhat he suggested that people should show only one face to the world, so how you behave when with friends should be how you behave at work - you might say that this would mean there should be no such thing as a private part of your life according to his philosophy. It strikes me as quite a naive view of the world, but maybe that's just me.

Imagine my surprise when I visited his Facebook page only to find that he does not share all of his information! No pictures are available aside from the little profile pic. No information about him aside from his taste in films and books and this little quote: "About Mark: I'm trying to make the world a more open place."

Presumably, he means more open for other people's information, but not his own.

Happy New Non-Story

2011-01-04T10:45:00.000Z

Happy New Year to everyone. I thought I'd start of the year with a nice non-news-story brought to us by our friends in the Scottish National Party. A chap called Stewart Maxwell of the SNP quite rightly wants to stop sales of alcohol to those who are under-age and so he has written to supermarkets asking them to stop selling booze through self-service tills... well he says that's the reason he's doing it, although personally I think it's just a cheap way to get some personal media attention.

His big point is that, "[i]t would make much more sense for alcohol as a licensed product to only be for sale through a full service till where a sales assistant can properly assess a customer's age." Whenever I've tried to buy alcohol (or any age-restricted item) through a self-service till the machine makes an infuriating beeping noise and will not allow you to continue with the transcation until a member of staff has confirmed my age. The self-service tills won't even let me get away with buying two boxes of ibuprofen at a time let alone anything more serious.

I agree that politicians should take an interest in whether kids are drinking themselves silly, but this story just reminds me of Jim Hacker's route to become Prime Minister when he and Sir Humphrey took a non-story about the "euro-sausage", put a bad spin on it then solved the "problem" with some tough action.

Incidentally, anybody who thinks that I've just done exactly the same thing by writing about this non-sense is quite right.

Delayed justice is no justice

2010-12-16T15:45:00.000Z

I have just read this story on the BBC website.

I don't practice immigration law and have never studied it at any level, I also know nothing about the original case that led to Amy Houston's death. But the case does show the difficult decisions faced by judges every day as much as it shows the inadequacies of the current system.

First, the judges. They were, in effect, being asked to chose whether to throw a criminal out of the country and thus deprive his children of their father or allow him to stay and cause hurt to Mr Houston. It's not a decision that I would have liked to have taken.

Turning to the system. Could the system have avoided placing Mr Houston and Ibrahim's wife and young children in this position? Well, yes it could have done easily by hearing this case in a timely fashion in 2003 while Ibrahim was still serving his four-month sentence. Given that the authorities were seeking his removal from the UK, I wonder whether at that time they would have had an argument to hold him in custody pending a decision.

In the criminal courts cases can take more than a year from CHARGE to come to trial - note that I said from charge, not from commission of the offence. Things seem to be improving slowly, but it's not that long ago that Snaresbrook Crown Court was listing cases for a trial a FULL YEAR after the plea and case management hearing. For those who don't know, to get to a PCMH in a theft case, for example, you are charged then appear at the magistrates' court a week or two later. You say not guilty and elect crown court trial. Assuming you are on bail a date will be fixed for a committal hearing at least six-weeks in the future. It's not uncommon for the CPS not to be ready, but lets say they are then you'll have to wait another four to six-weeks for the PCMH hearing. As I've already said only a little while ago Snaresbrook was listing from then to trial a year in advance! So from charge to trial can easily be more than a year.

One thing that would really help those seeking justice is for our system to be properly financed, i.e. more judges and courts, so that cases are heard in a reasonable time frame.

If you believe it then do it

2010-12-16T10:32:00.000Z

This is one of the reasons that I am currently feeling so anti-politician.

I don't agree or disagree with Bob Ainsworth's current opinion on drugs but I do get annoyed that the report seems to suggest that he came to his current view while in office but then waited several years before saying anything about it.

Politicians: if you believe in something then a) tell us; and b) do what you believe in rather than ignoring issues because you know that the press will give you a bad write up.

Time and place

2010-12-15T17:12:00.000Z

I've just come across a file that has got me thinking about how decisions get made. It's not a case with which I've had any involvement aside from reading the file just now.

The case is a (not uncommon around here) allegation of rape where the complainant says that she was raped about 8-years-ago by somebody she knows. There have been no other incidents either before or since according to disclosure given by the police to the solicitor who attended for interview at the police station. She provided the police with the suspect's home and work address as well as his name.

There will not be any forensic evidence available in this case due to its age, although if I were the police I'd want to search his home and possibly have a look at his computer since people do store the most incriminating things on there in the mistaken belief that they are safe. This would lead me to the conclusion that the best thing to do is to knock on his door around 5-6am, arrest him and start the search there and then. To be blunt, unless the officers can find something at his home address (or other women come forward with similar complainants, etc.) then this is a case that will never see a court room. If I were advising him in the police station I would say that this is a weak case and that the suspect should preserve his position by refusing to answer any questions.

In this case, the police waited until he got to work then attended his workplace and arrested him for rape in front of all his colleagues. There is no suggestion from the police that they searched or seized anything from his place of employment. The Defendant was then held in a cell while his home was searched.

I cannot think of any reason to effect the arrest in front of his workmates aside from humiliating him in the knowledge that the case will probably be dropped later on. It maybe that there is a good reason for doing it this way and if any police officers can enlighten me as to how they would have proceeded then I would be pleased to know.

Incidentally, the police did take no further action against this man.

wiki-armed forces

2010-12-12T11:40:00.000Z

I have to congratulate HM Armed Forces for seeing an opportunity to raise recruitment and jumping on it.

I just googled a single word "wikileaks" and it returned a single sponsored result advertising:

Join the Special Forces

Learn how you can be a part of UK's Elite Special Forces squads

HMForces.co.uk/SpecialForces

I'm not sure if the Special Forces support or oppose wikileaks from this ad, but I love the plan. Maybe I'll pay for searches on wikileaks for my work homepage.

Down with Mandela

2010-12-10T14:14:00.000Z

In Parliament Square there is a staute of Nelson Mandela, he of South African anti-apartheid fame. I heard him speak once, but unfortunately to do so I had to listen to some sanctimonous arsehole called Tony Bliar (misspelling deliberate), but that's another story.

I understand that students are unhappy about the rise of tuition fees but I couldn't really understand why somebody thought it necessary to dawb Mr Mandela's statue with the pink paint that I saw on it this morning as I rode to court. Nor, if they simply wanted to protest was it necessary to write "fuck police" in big letters on Winston Churchill's statue.

A few days ago I saw students protesting outside Parliament about the reduction in funding for school sports. They were well organised, very vocal, got themselves on the tele but managed to avoid closing the whole of central London and trashing the place.

so I punched him

2010-12-10T13:45:00.000Z

Something reminded me of a case I dealt with a number of years ago.

It started as a fairly bog standard shoplifting that occurred around Christmas time. During the first incident, the offender took a bottle of whiskey and some beers from a Tesco. The store guard tried to stop him and from that point things got bizarre. The offender pulled a gun and threatened to kill the guard. Unsurprisingly, the guard stepped back and let the man go.

The next day at the same time the same man went into the same Tesco and stole the same items. He was seen by the same security guard who called for help from staff and the police. As the man left the store again the security guard - still alone - bravely told him to stop. Again the offender pulled a gun and pointed it to the guard's head. I've always remembered the next words in the guard's statement to the police. He said, "I was terrified. I didn't know what to do, so I punched him in the face." The thief/gunman promptly handed over his gun and sat on the floor crying until officers arrived to arrest him.

I met the man months later by which time he'd pleaded guilty, got a number of years imprisonment and had decided to wipe the slate clean by confessing and being sentenced for a number of offences that the police hadn't known he was involved in before. All I remember thinking was that I wouldn't have tried to punch this man even if he'd been unarmed. He had to be 6'6" tall and very powerfully built.

All respect to that brave guard and I hope this Christmas is less eventful for him.

Personal responsibility

2010-12-08T20:42:00.000Z

I'm a firm believer that people should take responsibility for their actions and I like to think I abide by that principle myself, but whether I do or not is probably best judged by others.

As I see it one of the biggest problems the Criminal Justice System faced is the population taking responsibility for itself. If somebody won't take responsibility for their acts then I do not see how they can be rehabilitated. One of the things that always shocks me is just how little responsibility people will take. I remember sitting in the cells at Snaresbrook with a defendant accused of downloading lots of child pornography. He accepted that he downloaded it, he said "out of curiosity" because when he had previously been convicted of the same offence he hadn't actually seen the pictures so he wanted to know what that kind of thing looked like.

One thing I have to do is to act in the client's best interests; sometimes that means telling them the brutal truth and I remember saying something along the lines of "that sounds like a load of bollocks and the judge won't believe a word of it". I asked him to explain to me the real reasons why he downloaded those pictures. Of course he stuck to his story, said it wasn't really his fault and got the better part of a couple of years in prison.

I've noticed the same thing during the recent snow. People complain that the path outside their house is icy but won't lift a finger to clear it and object to paying any more on their council tax so that the council can buy a serious amount of snow and ice clearing equipment. Whereas when I was last in Slovenia and a foot of snow fell in one night on the exisiting foot of snow the next morning by 9am most of the streets were clear because everybody cleared the little bit outside their own home or work.

The Liberals have been guilty of this as well lately with their U-turn over tuition fees and bizarre claims that they never promised nothing g'uv and even if they did then those promises don't count now.

The lack of responsibility is one that is endemic in society and is something that should be tackled if any Government is serious about reducing crime. I'd suggest starting by opening youth courts to the public and removing the almost automatic right to anonymity for youths convicted of crime. If you've never been to a youth court (and you won't unless you're a wrong 'un or an official of some sort) then you probably don't know just what a soft unchallenging environment they are. For example, I was once told off for calling a defendant "Master X" and reminded to call him by his first name so as not to intimidate him as he pleaded guilty to a series of nasty violent street robberies! I think the youth court is a good place to start as today's first offence youth is tomorrows PYO and next weeks IPP or life prisoner.

People convicted of crimes (not just youths) should have it spelled out for them that they are in the wrong and they must take responsibility and if they don't then sentences should increase in future. In theory this happens now, but magistrates courts are too busy for a bench to seriously tell somebody off and in reality sentences do not increase much as more offences are committed. Further, get the local press to report more of what happens - naming and shaming drink drivers will probably have a much greater impact on their behaviour then any drink awareness course.

But, this isn't a problem that the CJS can fix alone; it is something that society as a whole needs to address. People seem to think that the courts and the wider CJS are there to repair all of societies ills. It's not. All the courts can really do is mop up after the event. If Government wants to reduce crime then they must act BEFORE the individual becomes a criminal.

I don't pretend that this is the elixir that will solve all crime in the UK, but I think its got to be a good place to start.

Hints and tips 2

2010-12-03T17:38:00.000Z

I'm good at what I do... well I think so even if nobody else does. But, I'm not a miracle worker. If you find yourself arrested and remanded into custody and then I show up and persuade the Crown Court to release you on conditional bail: make sure you obey your conditions, especially when the judge has told you just a few days earlier that "if you break your bail conditions you are very likely to be returned to prison".

If you don't obey then expect to spend up to the next year in prison awaiting your trial. It really is that simple.

Legal Aid silliness

2010-12-02T14:07:00.000Z

Just following up on my last post where I mentioned how complex legal aid is; I have just billed a trial. One of the solicitors in the office conducted the litigation while I acted as advocate - the barrister if you like. The trial lasted for three days. Neither of us are paid anything for the first two days of the trial, this is included in the basic fee. However, for day 3 I was paid a pretty reasonable £451 for attending, conducting a trial, questioning witnesses, making a speech to the jury etc etc. However, the litigator received an extra payment of £771.17 for that day (I know as I'm preparing his bill for him). For that extra payment he did not attend court, although I think I spoke to him on the telephone.

Because of the way the system works you have to claim everything. If you don't then when your files are audited there will be a discrepancy between your claim and the 'correct' fee, this will count against you and you will lose your status as a Category 1 firm - this is important as a couple of years ago the LSC refused to renew the contracts of all Cat 3 firms, so they went out of business.

This happens because the LSC insist on paying solicitors based purely on the number of pages and the length of trial irrespective of what work needs to be done. They call this swings and roundabouts because sometimes you do well, other times you lose out. What it really does is removes any incentive to do good quality work and creates a climate where solicitors might as well employ as many untrained paralegals as possible to avoid paying the extra premiums demanded by qualified and experienced solicitors. Just remember if you're ever accused of a crime you didn't commit (or maybe one you did) then these are the people who could be fighting for you.

If the Government really want to reduce the cost of legal aid then they would do well to look at the complex way it is organised. I'm not aware of any situation where the more complicated something was the cheaper it became and the same is true of legal aid. If it's complicated then there will be more mistakes. If there's more mistakes then you need more staff and better computers to catch them.

Legal aid overpaid

2010-12-02T13:01:00.000Z

I came across this story in the Gazette this morning, which is about solicitors funded by legal aid being overpaid by £77 million pounds. In fact, the solicitors were over paid £44m with the remainder going to claimants who had been granted legal aid without submitting evidence of income, so they may or may not be eligible. That's a lot of money, but if we consider that the legal aid budget is approximately £2.1bn then the £77m is roughly 3.667% of the total spend - at this point I should come clean and admit that maths are not my strong point so if I've got that wrong then please do correct me.

More important than the figure, in my opinion, is that suggestion from Bill Callaghan of the Legal Services Commission that some solicitors are over or mis-claiming. Now this can be taken two ways. First, accidental over and under-claiming happens by accident because the system is so very complicated - in a previous post I talked a little about the billing in the magistrates courts, in fact I barely scratched the surface as nobody would want to read it and I wouldn't want to write it! In fact, you can see that the Law Society points out that the whole system is unnecessarily complex and has offered in vain to work with the LSC to simplify the system.

The second implication must be that some people are deliberately mis-claiming. If the LSC has evidence of it then I wonder why no charges have been brought? The only story I can find about solicitors conducting fraud and being tried relates to events between March 1989 - January 1995 (before the Legal Services Commission even existed). If there is evidence then those solicitors should be prosecuted as soon as possible.

Incidentally, the firm at which I work is a Category 1 organisation, which means that when our files were audited there was a 10% discrepancy between our claims and what the LSC's legally unqualified staff thought was reasonable work for us to have undertaken on each case. Cat 1 is the highest level possible. This must mean that the profession as a whole as exceeded the LSC's highest standard of financial management by quite some way!

Politicians

2010-11-22T18:39:00.000Z

I try not to pay much attention to politics any more. I used to love it, but more and more I'm forming the view that politicians are a bunch of lying corrupt bastards. In fact, I'm so angry at them that I am not attending a party at the Supreme Court tonight as I was worried I might slap Ian Duncan-Smith who is due to be attending.

This week, I have mostly been enraged by Ed Balls and Vince Cable.

You may recall that during the Labour administration they constantly ramped up fear of terrorism and told us that they needed new and ever more draconian powers to curb the threat to our nation. Since they lost the election, something has clearly changed. Ed Balls told the BBC that Labour got the balance between national security and civil liberties wrong. He admits, for example, that his party were wrong to try to pass a law allowing terrorist suspects to be detained for 90-days without charge. He says they were wrong to try for 42-days. And, now he says that despite fighting tooth and nail for a 28-day detention limit that was wrong as well and Labour may now back a return to the old 14-day limit. In fact, he concedes that since the limit was extended from 14-days to 28-days, precisely zero suspects have been held beyond 14-days!

He said that at the time, the Government was under pressure from terrorist plots. Does that mean then that the plots have all now vanished? Is the terrorist threat now at an end? Or, is this just a very cynical dishonest re-positioning by a politician who recognises that large swathes of the voting public would not trust him or his mates as far as they could throw him?

Incidentally, Mr Balls also gave us a glimpse of how politicians really view crime fighting strategies. He said that people want more CCTV cameras "because they want to feel safe". Take note of those words, "they want to FEEL safe". He's not advocating them because he believes they reduce or detect crime, simply because they make people feel safer regardless of whether or not they are safer. That attitude of politicians doing things to make it seem like that give a crap is the sort of attitude that has prevented the police and courts from actually being able to crack down on crime. It's all style and no substance.

My own MP, Vince Cable, has also been at it. He's been telling us that he did not break any promises by going back on his promise not to raise tuition fees for uni students. His reasoning seems to be that because he didn't win the election none of the principles he claimed to believe in before matter now.

I also see that Ken Clarke has launched yet another consultation on legal aid. Despite the last Government spending millions on dozens of consultations (the results of which were mostly ignored completely). The latest consultation document is 224 pages long plus a quite staggering 558 extra pages of impact assessments. It's billed as the biggest shake up of legal aid since it was created in 1949 (just like all the other consultations), but in reality it's just about cutting costs, e.g. should "bolt-on" costs for solicitors be reduced by 50%? I am a solicitor and I don't even know what they mean by bolt-on costs! I'm going to blog more about the effects of these proposals later, but to summarise most will mean weaker defence teams because firms will continue the growing trend to use less qualified and less able staff to do more and more difficult work.

There endth the rant.

Worth it

2010-11-16T16:47:00.000Z

I have just come across a case where a man with what the police officer in disclosure at the police station called "a serious mental disorder" was arrested at what the officer described as a "care home for the mentally ill" after the man had smashed a window and caused a disturbance. At the police station, the care home manager indicated that she was happy for this man to return as this was his first violent outburst in 10-years of being in their care.

I don't for a moment seek to criticise the police for the arrest as that removed him from the situation and gave everybody a chance to calm down.

He was interviewed by the police and I can tell you that the advice given was to "put forward [his] version. Client is guilty - admits he did break window." He then went into interview and made a full confession.

For some reason, instead of cautioning or taking no further action in a case where a conviction will clearly serve no purpose a CPS lawyer authorised a charge for criminal damage. The unsurprising result was a discharge by the magistrates at the first hearing. The application by the Crown for costs and compensation were both refused as it was clear that the man was too ill to work and had been in care for more than a decade.

I have to ask whether prosecuting what the Crown itself describes as a very sick man, who had been ill for many years, for a relatively minor offence in circumstances where the victim wants him returned to their care ASAP is in the public interest. What benefit did the public gain from this? What outcome was the CPS hoping for?

Rape anonymity

2010-11-12T12:31:00.000Z

I have just read on the BBC news site that the Government has abandoned it's pledge to grant anonymity for men accused of rape.

This was always a controversial proposal and I was very surprised when it was included within the coalition agreement as it was always something that would attract little vocal support from the public and was always going to come in from intense criticism by a number of women's groups.

Personally, I think that rape is one of the few offences where an accused's identity should be protected. Not because the identity of the complainant is protected, but because there are real cases every year where either a completely false allegation is made or where the wrong person is identified, accused and subsequently cleared of the offence.

Being falsely accused of rape, or indeed any sexual offence, is a stigma that sticks to the accused even after their innocence has been proven. Anybody who pays attention to the newspapers and press cannot help but notice that cases making front page news are suddenly relegated to a footnote on page 18, if they are reported at all, after an acquittal.

I acted as Counsel in a fraud case that was briefly very high profile as being the biggest fraud against the UK Government in history. Sky News followed the case every day taking interviews with the officers so they could make a one-hour documentary on it and it made the front page of a number of national papers. When we were acquitted, Sky turned the case into a minor part of another documentary and not one of the papers reported our client's acquittal!

Personally, I think that the press should be barred from naming anybody involved in a sexual case (unless such naming is necessary, for example, in order to appeal for assistance locating a suspect, etc.). Once somebody pleads guilty or is convicted then I see no reason at all that their names and photos should not be published for all to see.

Too many law students

2010-11-10T15:53:00.000Z

As under-graduates are busy causing havoc in London (and incidentally blocking my usual route home) there are growing calls from members of the legal profession to reduce the number of post-graduate students training to become lawyers.

To qualify as a solicitor most people complete a law degree, the Legal Practice Course and two-years of on the job training. Similarly at the Bar you do your degree, the Bar Finals (they have a new name that I can't remember now) and then one-year on the job training, called a pupillage. Currently the LPC at BPP Law School costs £12,500 in London and the Bar Course costs an eye watering £14,995. By the time you get near doing these courses you will have either a law degree, currently costing about £9,000 or a non-law degree (still £9,000) plus the Post Graduate Diploma in Law £8,730. If I qualified today using the route I took then I would have paid £23,734 just in tuition fees. That is significantly more than any trainee solicitors will earn on the high street.

Shortly the first degree will cost £27,000 for a three year course, giving a total to qualify as a solicitor of £39,500 (the route I took would cost £50,725). At a rate of about £250 p/m repayments and ignoring interest completely, a debt of £39,500 will take more than 13-years to repay. If you pass your LPC when you're aged 23 then you will still be repaying the debt when you are 36-years-old. Most people by then would have hoped to have bought a house, but what responsible lender will give a loan to somebody with all that debt?

Add to that the unfortunate but simple truth that the vast majority of hopeful lawyers-to-be will never qualify! Of the 30-odd people in my class on the Bar course just two of us are in practice! This is something that the colleges running the LPC and Bar Finals never seem to mention to their students... at least not before they stump up their first tuition fee payment.

Maybe it is time that students are prevented from undertaking the LPC and Bar Finals until such time as they have secured a training contract of pupillage. It may not be nice, but it might be in their best interests. Otherwise there really will be a generation of students with too many useless qualifications and a mountain of debt they will never be able to repay.

Letting victims down

2010-11-06T21:08:00.000Z

I spent yesterday conducting the defence in a magistrates' court trial. This is something of a novelty for me as I rarely venture into mags court trials, although I do a lot of other hearings there. I just don't like them, they can be very informal and law is often an irrelevancy if you happen to find yourself before an inexperienced bench/advisor.

Yesterdays trial was a long one and, contrary to what I have just said, very heavy on the law. I have about 6 legal rulings noted in my book given by the magistrates at some point yesterday. Even though I am contradicting what I said just a moment ago, each one of the legal arguments was complicated but each one of the rulings was detailed, to the point and correct (including the ones I lost).

In the end, I won the trial. I shouldn't have won though. At the start of the day the evidence against me was overwhelming, in my opinion. However, the police and CPS seemed to be conspiring together to let the victims down as much as possible.

At the plea hearing, the CPS indicated they would ask for special measures to make giving evidence easier for the victims because they had said they were afraid of the defendant. The CPS were also to apply to admit the defendant's bad character.

Neither was done.

Yesterday, the court received a message saying the witnesses would not be attending due to their fear of the defendant. The police had been to take witness statements from the missing witnesses about their fear, which according to the evidence from the officer was mostly based on a claim that the defendant's five-year-old son had said something to the victim's five-year-old son. I imagine these two normal healthy adults had other concerns but the officer didn't bother to ask about them.

Even though the CPS had known for a long time that neither witness wanted to attend, no effort was made to have their evidence read until the day of trial but which time the application was refused as a) coming far too late; and b) leaving the defendant with no way of putting his case to the witnesses. Had the CPS bothered to make the special measures applications as they promised then this would have been avoided, they would have given live evidence and I fully expect they would have been believed.

Also, because the CPS didn't bother to make a bad character application, the bench did not hear about his previous convictions for similar offences.

The police who investigated the offence of criminal damage hadn't bothered to take any photographs of the damage or make a note of the damage. This meant that by the time we got to trial without the missing witnesses the Crown were unable to prove that there was in fact any damage at all!

The officer in the case had attended the scene and taken some photographs, albeit a month after the incident by which time the damage had been repaired. These photographs would have been very useful to the court, but he decided not to tell anybody about them until after the trial had ended.

The court clerk and I both agreed that it has been a while since either of us have seen a case where the police and CPS have failed so miserably to look out for victims of crime.

Defence adjournments

2010-11-04T16:03:00.000Z

Defence lawyers have cases adjourned to increase their own fees.

That's what everybody seems to believe, but in fact it's rubbish.

In the Crown Court solicitor are paid a litigators fee. The litigators fee doesn't change whether there is 1 hearing or 100 hearings in court. It does increase if the trial goes on longer than a set time, which varies depending on the offence. But, importantly the litigator has bugger all to do with how long the trial lasts.

Judges are charged with responsibility for preventing cases going on longer than they should or having more hearings than they should. If they feel that somebody is causing unnecessary waste then they can disallow that persons fee and even make him pay the costs of everybody else in the case!

In the magistrates courts, solicitors are paid a standard fee depending on whether the defendant pleads guilty (fee of £284.35) or not guilty (£484.60). There is a higher or lower fee for each and you move into the higher fee if you do enough work. Most adjournments take less than 5 minutes and you would need a lot of those to take you from lower to higher standard fee on a trial (in fact assuming an adjournment hearing takes 5 minutes and you need to get to £651 to move from the lower standard trial fee to the higher fee and you are paid the advocacy rate of £62.35 per hour you would need to conduct 126 adjournment hearings to move to the higher standard fee!!)

Legal aid lawyers are not paid for travel or waiting in either the Crown or magistrates' courts.

The reality is that you will be paid more money for a case if there is more work to be done. So, if there's lots of evidence you'll earn more. If you simply try to waste time by adjourning everything you'll spend a lot of time not earning anything.

All the solicitors I know operate a business model that aims to resolve cases as quickly as possible so that the firm can be paid and the fee-earners can move on to the next case.

At the moment the best possible case for solicitors from a profits point of view is a case where you are instructed in the police station, the client is charged with a reasonably serious, but not too serious offence, and enters a guilty plea at the magistrates court where is he dealt with on the first occasion. You don't want the case being committed to the Crown Court because then you won't be paid anything whatsoever for your work in the magistrates' court no matter how many hearings there are!

Oops

2010-11-04T15:11:00.000Z

I left the robing room at Court today and walked in to the hall way. Talking in the hallway were two police officers in full uniform. Before they saw me, one said to the other in a very worried voice, "we're not gonna get away with this". The other agreed.

Co-incidentally, at the same Court two police officers were being called to give evidence about what they had seen on CCTV. The only problem in that case seems to be that the CCTV they claimed to have watched in October 2010 was in fact LOST in January 2010...