Friday, 17 February 2017

No-win, no-fee and business rates






Very quick blog for the benefit of David Gauke, MP who happens to be chief secretary to the Treasury.

He is introducing business rate changes that will see rates rise for just over half a million businesses from April. He is facing a barrage of criticism from various directions. I instinctively feel that business is quite heavily taxed at the moment and increasing the tax burden on small businesses at such an uncertain time is a terrible idea. But, I also recognise that I don’t really know much beyond what happens in my own business so I won’t try to argue whether the rate changes are a good or bad thing
What I do want to discuss is his comments about steps being taken to clamp down on people bringing challenges to the rates they are asked to pay in the hope of reducing the cost to their business. 

Mr Gauke seems to place the blame for too many challenges at the door of the surveyors and lawyers (aren’t we always to blame… well until you need us) encouraging businesses to proceed on a no-win, no-fee basis. He said this: 

“Nobody is going to be stopped from appealing… We have to recognise what is currently happening in the system is that there are a huge number of very speculative appeals that are going in, first encouraged by agencies on a no-win no-fee basis, chancing their arm hoping that there will be a reduction in their business rates.

 “That is frankly clogging up the system and getting in the way of appeals for those who have a genuine problem, where maybe there has been a mistake or an error, and that process is much slower than it should be.”

Since Mr Gauke is being frank, I hope he won’t mind if I am too. For somebody whose job is so integral to business in the UK, it is a pity Mr Gauke has not taken a moment to think about how no-win, no-fee claims work. If he had I do not see how he could have made that statement with a straight face. To be even franker I don’t see how he could have looked at that statement and thought, “that makes sense” on the face of the words themselves. 

As the name implies, no-win, no-fee means that if you don’t win your case your lawyer or surveyor doesn’t get paid. In civil courts, solicitors are entitled to claim an enhanced fee when undertaking these cases. I don’t know whether that is the case in rate challenge cases, but after looking at a few firm’s websites I see most take a portion of the savings they bring in, which is effectively no-win, no-fee. 

Because the solicitor does not get paid if he loses the case there is no incentive for him to agree to a no-win, no-fee arrangement in “speculative appeals” since, if it is a case with no real merit then that is a recipe for losing. And, in case Mr Gauke isn’t keeping up, if the case is lost the lawyer has undertaken all the work involved without being paid. That’s fine if you expect to win more than you lose, but if you are deliberately proceeding on speculative cases that you know are likely to be lost then you will lose more than you win.

Losing more than you win, or to put it another way, working for free most of the time, is a terrible business model and one that is likely to lead very quickly to bankruptcy. While it has always been said that great lawyers make terrible business people, even the worst businessman should realise that spending the majority of your time working for free will not keep you in business long. 

I don’t deny that speculative cases are brought. But, I’d suggest there are reasons other than lawyers encouraging clients to proceed simply to line their own pockets. 

I also don’t deny that no-win, no-fee arrangements exist but, I do suggest that any sensible businessman would not repeatedly enter into them knowing they are going to lose over and over again. As I’ve said, most of the firms I’ve seen charge based on the savings they make for the business – no saving equals no income, which means unpaid bills every time they lose.

You might consider that people are engaging lawyers and surveyors or bringing “speculative appeals” themselves because the impact of taxation across their business is very high and they are very desperate to minimise it if at all possible. But, like I said, I’m no expert on taxation so I’ll let you make up your own mind.

Friday, 3 February 2017

Has Paul Nuttall of UKIP broken election law?


Nuttall criticised for his living arrangements but not for that awful outfit
Over the past few days, UKIP leader and Swindon by-election candidate, Paul Nuttall has faced criticism for giving his home address, on the Home Address form that is part of the nomination pack for prospective political candidate, as one where he does not live. Mr Nuttall answers these criticisms by saying that he gave the address because he has rented the house and intends to move into it for the duration of the election campaign.



Journalists, most notably Michael Crick, have been forthright in their claims that Mr Nuttall broke the law and could face prison for making a false declaration. So, what is the truth?

Michael Crick on Paul Nuttall
Prospective candidates must register their nomination with the returning officer by providing certain information. The required information is set out in paragraph 6 of schedule 1 to the Representation of the People Act 1983. All of the required information can be easily provided by downloading and completing a nomination pack from the Electoral Commission website. For our purposes, the relevant information is required by paragraph 6(4) of schedule 1 to the 1983 Act and is provided by way of form 1b – Home Address Form in the nomination pack. The form asks for “Home address (in full)” and in a separate box for “Postcode”.



The Electoral Commission has produced guidance for completing the nomination pack. In so far as the Home Address Form is concerned its guidance can be distilled into, “write down your home address”.



I cannot find any cases citing para 6(4) – in fact the first time para 6 seems to have been referred to in any case was 2015 when a returning officer refused to allow two people who wanted to job-share the role of MP to stand as a single candidate. This means that a court has never had to rule on the definition of a home address. I think this is important because, in the absence of any guidance, I would argue that home address can obviously mean where you live this minute but could also mean an address that you have acquired and plan to use imminently. The question is how you interpret the law. If you take a strict approach then a candidate must give the address at which he or she lives at the time the Home Address Form is completed. But that leads to bizarre results. Let’s imagine I plan to stand. I’ve lived in my house for 10 years but will be moving next week and will no longer have access to my home of 10 years. If a court were to take a strict approach then I must enter my current address, which will be available for the public to see despite my having left that address by the time of the election. That is an anomaly I cannot imagine Parliament intended to create.



But, if we take a purposive approach we may well conclude that since I will be living at my new address within a week and that is where I will be should anybody wish to contact me about my candidacy that I should enter my new address since that is the address that will be relevant to any voters or journalists wishing to find me.



Lay people often imagine that the law is a fixed, almost tangible, thing that any lawyer worth his fee can define in a few words. The truth though is that law is about assessing meaning, thinking through the consequences of different meanings and applying the meaning that works best. After that’s been done once it can become a precedent – a law if you like – to be followed in future.



I would suggest that Parliament’s purpose in requiring candidates to provide their address was not to freeze a moment in time for posterity but to provide a ready means for the public, journalists and, most importantly, the returning officer to find that candidate. If that is the case then Mr Nuttall will have complied with the law, assuming he actually intends to move into the house as he promised.



We’ve started, so let’s finish this thing and put ourselves in the position of a prosecutor weighing up whether to prosecute or not. We are going to take a strict approach and decide that Mr Nuttall has given the wrong address on the Home Address Form – what now?



Being a good prosecutor, we will have noticed that section 15 of the Electoral Administration Act 2006 created the crime of supplying false information and inserted that crime in the 1983 Act as section 13D, subsection 1 of which tells us that:



“A person who for any purpose connected with the registration of electors provides to a registration officer any false information is guilty of an offence.”



There is a defence to the charge afforded by subsection 4, where a person did not know and had no reason to suspect that the information was false. You might well argue that if Mr Nuttall genuinely intended to live at his Stoke address that he may well not have realised that the information he was providing was false for the purposes of the Act. I’ll let you make your own minds up about that.



Section 13D(6) tells us that a person who is guilty of an offence shall be liable to imprisonment for up to 51 weeks (although I am not certain if 51 weeks is in force since a. that would exceed the magistrates maximum sentencing powers; and b. I cannot locate a copy of the SI bringing the relevant amendment into force as legislation.gov.uk is down) and an unlimited fine.



So now, sitting with our prosecutor’s hat on, we must decide whether such an offence should be prosecuted. We have the Code for Crown Prosecutors to guide us as well as specific guidance for the offence of supplying false information.



The guidance tells us that the purpose of the Acts governing elections “… is to maintain the integrity and probity of the electoral process. Proceedings for major infringements will normally be in the public interest.” It goes on to tell us that an offence of a technical nature that does not infringe the spirit of the legislation can be dealt with by way of a police caution or even advice as to an individual’s future conduct.



Keeping ourselves in the position of a prosecutor, I would suggest that giving an address you intend to move into but have yet to do may well not be false information at all if that new address is the appropriate one for you to enter on a purposive approach to the interpretation of the 1983 Act. The decision is not mine though – you decide. Do you think that Parliament intended to criminalise the giving of an address you already own a lease on, a home in which the candidate is about to move to and which they will be living in during the election? I suggest that is not what Parliament intended, but, if you are not with me on that then I invite you to consider whether such a candidate would realise that the information they were giving was false for the purposes of the Act? If you think that he wouldn’t realise that then he is not guilty of an offence and should not be prosecuted.



If you decide that, on the face of it, an offence may well have been committed then we need to consider whether prosecution, caution or advice is the best way of dealing with this – of course a caution can only be administered if the candidate makes a full and frank admission to wrongdoing.



I would suggest that this is a technical breach of the law and is not one likely to have any influence on the outcome of the election whatsoever. In that case, should criminal proceedings be brought or should advice be offered? You’re the prosecutor charged with making a decision – you decide.

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.