Monday, 23 January 2017

The court that likes to say, “no”


Royal Courts of Justice - home of the Court of Appeal


Friday last saw the publication of judgment by the Court of Appeal Criminal Division (CACD) in the case of R v Ordu. In 2007, Mr Ordu entered the UK via Germany using a false passport. He was prosecuted under the now defunct Identity Cards Act 2006 for possessing false identity documents with intent.



Section 31 of the Immigration and Asylum Act 1999 was in force at the time (and indeed is still in force, although it has been amended); it creates a defence for refugees fleeing persecution. It was supposed to bring the law into compliance with the UK’s treaty obligations arising from the Refugee Convention. Section 31 was badly drafted because it barred people who had stopped over in another safe country on their way to the UK from relying on the defence; however, the Convention specifically required the UK (and other signatories) to extend the defence to such people. Despite this glaring conflict the law at the time of Mr Ordu’s case appeared to be settled and the section 31 defence was not open to anybody who had made a stopover on their way to the UK (R v Pepushi). Because of this, the barrister representing Mr Ordu did not advise him about the existence of the section 31 defence. Mr Ordu was therefore advised to plead guilty, which he did and was immediately sentenced to 9 months’ imprisonment.



However, the law was not settled – the Court of Appeal even has a phrase for this sort of thing: “the law as it was then understood”, which in my book is usually code for: “that time when we got the law wrong” – because in 2008 along came Ms Afsaw who was an Ethiopian national who had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father had also been persecuted and died in police custody. She was arrested attempting to leave the UK for Canada. It was accepted by the Crown that she was a refugee fleeing persecution and that she had used the UK to make a stopover on her continuing journey. The case ended up in the House of Lords where their Lordships held that section 31 should be read as providing immunity for a refugee attempting to leave the UK as part of their “continuing course of flight from persecution”. This effectively changed the law as it had been following Pepushi.



Mr Ordu was seemingly unaware that all this was going on. He served his prison sentence, was released and at some point, shortly before the 29 February 2016, I know not how, Mr Ordu became aware that the law had changed. He then filed his notice of appeal along with an application for leave to appeal out of time – effectively asking the Court of Appeal for an extension of the time to appeal by eight years and three months. In his appeal notice, Mr Ordu cited the case of R v Mateta. This is one of a number of cases in which advocates failed to advise clients about the availability of the section 31 defence. For a time this seems to have been a very common mistake – I don’t know why. The first time I defended one of these, I took what some seem to find a novel step of opening a law text book and reading up on the law – section 31 was clearly explained and short of having a big red popup finger on the relevant pages I do not know how it could have been any clearer. But there you have it.



The Court of Appeal registrar appointed a barrister to act for Mr Ordu and the appeal was refined to one arguing effectively that a change in the law rendered the original conviction unsafe.



In deciding this appeal the Court of Upholding Criminal Convictions Court of Appeal, first had to decide whether to grant the extension of time for Mr Ordu’s appeal. They recognised, at paragraph 17, that if the section 31 defence had been open to Mr Ordu he would probably have been acquitted and thus if the extension of time were granted his appeal would probably be successful:



“The issue for us, therefore, is whether to grant the extension of time sought.  If we do,

it will be for us to consider whether the conviction is safe, but in the light of the

approach taken by the Crown and the decision of the Asylum and Immigration

Tribunal it is likely that if leave is given, the appeal will succeed, because the s.31

defence (if advanced) would probably have succeeded.  We approach the question of

leave on that basis.”



So, let’s take stock. We have an appellant who has been wrongfully convicted of an offence. He has served a prison sentence for that offence and now has a criminal record as a result of that conviction. True it’s now a spent conviction but it will nonetheless show up on any enhanced criminal record check he might have to submit for employment and, should he wish to travel abroad, it may well hinder his ability to do so in future. What do we think the Court of Appeal is going to do next? Let’s find out.



It doesn’t start off well for Mr Ordu. Paragraph 18 quotes this from the case of R v Mitchell:



“It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”



To translate into everyday English, it means, “just because we judges got the law wrong in the past does not mean we will, or should, intervene to put right the injustices caused by our “misconception of the law.” Mr Mitchell did get his additional time because he was imprisoned at the time and the Court of Appeal accepted that he was innocent of the allegation against him, but if you care to read the full text you’ll see they only just allowed his extra time despite knowing he was an innocent man in prison for a crime he didn’t commit! The reasoning was that Mr Mitchell was subject to a continuing and substantial injustice. By implication therefore, we now have two types of injustice recognised by the Court of Appeal – “substantial” (those that matter) and, presumably, “insubstantial” (those which the Court just doesn’t care about).



Their Lordships immediately decided that Mr Ordu’s case was in the category of “injustices they don’t care about” cases where there is no ongoing substantial injustice. This is because Mr Ordu has served his sentence and his licence period. His conviction is now spent and he is now a UK citizen. On that basis they refused his application for leave to appeal out of time saying that he has lived through the adverse consequences of the wrongful conviction (an interesting way to describe being imprisoned for a crime you didn’t commit) and that overturning the conviction would have no impact upon his life today. I would think that having your name and reputation wrongly tarred with a conviction for being the sort of chap who goes around using fake ID documents for no legitimate reason would be a big deal – it certainly would be for me.



While the court has undoubtedly applied the substantial injustice test correctly, this case highlights how the criminal justice system is weighted against those who find themselves in the dock.



Let us imagine an allegation of rape from 50 years ago (I’ve dealt with a case of that age and they are very difficult to defend) – who in the Court of Appeal will say that such cases should not be allowed to proceed to trial merely because the “adverse consequences” to the victim are now firmly in the past? Hint: none of them. This means that a defendant can be prosecuted for a non-summary offence at any time but cannot appeal any injustice arising unless that injustice is serious.



Why the substantial injustice test has arisen makes little sense in a properly functioning justice system. If somebody is clearly innocent of an offence, as the Court of Appeal accepts Mr Ordu is, then any properly functioning justice system should be seeking to do justice and quash the conviction. If it is not interested in justice, then it is not a justice system at all.



I’ve been told that the argument for the test is that allowing anybody to appeal just because they’ve been wrongfully convicted would open the floodgates. This is a bad argument unless you are accepting that there are so many mistakes made by the Crown Court that the Court of Appeal would not be able to cope with the tsunami of appeals that would flow from any lowering of the dam that is the substantial injustice test. I’m not sure that is an argument their Lordships wish to make.



I would tentatively suggest that a key reason for the development of the substantial injustice test is that we do not have a properly functioning justice system. It’s a bit like my first car, an Austin Mini Estate (in bright orange - or Vermillion as Mini preferred to call it). It looks good when it’s all cleaned up and the light is shining off its chrome bumpers just right. It work - most of the time - but occasionally it goes disastrously wrong and leaves you stranded in the rain (with a leaky driver’s side window). Nobody wants other people to think their car is a heap of junk so we keep them clean, polished nicely and hope the light hits it just right. Same with our justice system really.

Saturday, 24 December 2016

A day in the youth court


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, 15 December 2016

The importance of expert legal advice


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


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

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

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

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

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

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

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

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

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

Thursday, 8 December 2016

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


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

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

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

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

There are five options for the interview:

1.       Answer questions;

2.       Don’t answer questions;

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

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

5.       Answer some questions but not others.

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

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

“No comment”

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

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

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

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

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

Giving your account

Full comment interviews

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

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

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

Prepared statements

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

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

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

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

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

Wednesday, 7 December 2016

Let unqualified law graduates defence the poor says judge


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It's also bad news if you happen to be a law student because I guarantee that a few years after this scheme comes in you’ll see the top tier law firms expecting students to undertake a year of free advocacy before beginning their training contracts, which means another year before you qualify. How do I know this? Because we already see firms expecting candidates to have completed an internship prior to applying for a training contract. https://www.lawgazette.co.uk/features/how-to-get-a-training-contract/5042860.article

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

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

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

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

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

Friday, 2 December 2016

Lord Howard convicted of a driving offence


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

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

The law

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

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

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

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

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

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

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

The facts

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

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

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

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

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

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

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

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

Thursday, 1 December 2016

Drink driving in UK versus Norway: Drink driving limits


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

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

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

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

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

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

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

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

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