Thursday, 16 December 2010

Delayed justice is no justice

I have just read this story on the BBC website.

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

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

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

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

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

If you believe it then do it

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

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

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

Wednesday, 15 December 2010

Time and place

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

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

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

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

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

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

Sunday, 12 December 2010

wiki-armed forces

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

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

Join the Special Forces

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

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

Friday, 10 December 2010

Down with Mandela

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

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

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

so I punched him

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

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

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

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

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

Wednesday, 8 December 2010

Personal responsibility

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

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

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

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

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

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

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

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

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

Friday, 3 December 2010

Hints and tips 2

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

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

Thursday, 2 December 2010

Legal Aid silliness

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

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

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

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

Legal aid overpaid

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

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

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

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

Monday, 22 November 2010


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

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

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

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

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

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

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

There endth the rant.

Tuesday, 16 November 2010

Worth it

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

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

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

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

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

Friday, 12 November 2010

Rape anonymity

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

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

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

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

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

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

Wednesday, 10 November 2010

Too many law students

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

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

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

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

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

Saturday, 6 November 2010

Letting victims down

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

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

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

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

Neither was done. 

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

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

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

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

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

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

Thursday, 4 November 2010

Defence adjournments

Defence lawyers have cases adjourned to increase their own fees.

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

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

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

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

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

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

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

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


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

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

Tuesday, 2 November 2010

Hints and tips

Once in a while I will be providing useful hints and tips as and when something occurs to me.

Today I have a hint and a tip for defendants in criminal trials.

Hint - Your lawyer knows more about both the law and your case than your friends.
Tip - If you listen to your friends advice over that of your lawyer then expect to end up in prison!

This week I have been conducting a trial at a Crown Court.  For reasons that are beyond me, yesterday the defendant showed up with a friend who insisted that she a) refuse to give evidence in her own defence; and b) call a particular witness.

This causes problems.  First, the defendant declined a solicitor when interviewed by the police and made some damaging remarks that she now needs to explain - clearly she cannot do that without giving evidence.  Secondly, the witness the friend insists is called gave a statement that says the defendant is guilty!

Thankfully, I gave the client my hint and tip last night and this morning she showed up without the friend and ready to listen to sense.

Saturday, 30 October 2010

Litigation gone mad

I have just seen this report on the BBC website about a New York court allowing a pensioner to sue a 4-year-old for compensation.

The court held that the 4-year-old's lawyer had failed to show any evidence that the child was too immature or unintelligent to face trial for negligence.

That really is a compensation culture and I hope we never reach such pitiful depths in this jurisdiction.

Friday, 29 October 2010

Arrested for using the wrong locker

I received my copy of the Law Society Gazette yesterday and read a story entitled Solicitors sue police and prison service.  According to the story three solicitors are suing after they were arrested while visiting client at HMP Brixton because they placed prohibited items into the wrong lockers.  There doesn't seem to be any suggestion that any of the solicitors attempted to take the prohibited items into the visit area.  It is also worth noting that none of the solicitors involved have been charged with any offence, despite the comments by the Prison Service.

If you've never visited a prison, especially on a legal visit, it may be difficult to appreciate how prisons deal with security during visits.  There are very few common rules between establishments and the individual prison's rules are subject to change without notice and are in any case not applied evenly.  For example, last time I visited HMP Littlehey, I was reminded not to take a mobile telephone in with me but I was not searched.  The time before I was searched properly and had to go through the drug dog search as well.  At HMP Belmarsh, I had to provide the model, make and serial number of my laptop when I booked the visit.  On attendance none of these details were checked despite Belmarsh being one of the most secure prisons in the UK.

While I'm on the subject of Belmarsh, in order to gain entry you must have your fingerprints registered and checked whenever you move inside the prison.  My brother went to visit a prisoner there last year as he was leaving he saw the picture they held of him... it was actually me!  Glad to see that expensive system is fool proof then.

Anyway, because the prisons all operate different rules and procedures and those rule and procedures are always changing without any notice, it is often very difficult to know where you are supposed to leave things.  Some prisons have lockers outside the prison, some have them inside but before the search point and some have them at the search point.  Some places, like HMYOI Feltham have a mix of lockers in different places.  At HMP Pentonville, you leave everything outside unless visiting in the late afternoon or evening in which case you leave it at the search point inside the prison... although if you forget to leave something outside during the morning or early afternoon then you can sometimes leave it with the searchers... but only if they like you!  So, the rules and procedures are a mess.

The fact that five solicitors have been arrested (and none charged) at different times for the same thing seems to suggest that there is something very wrong with the information being handed out at Brixton prison.  It's been a while since I was last there and I can't really comment on the lay out from memory.

When I showed this story to one of my colleagues he told me that he forgot to take his mobile out of his pocket by mistake at Brixton.  He showed it to the searchers and was told to take it into the visit but, "don't make any calls"!

Will the solicitors win?  Maybe not since they do appear to have broken the law.  Were these arrests a good use of police time?  I'm going to suggest not.

Thursday, 28 October 2010

No sense of gratitude

I was in Court last week waiting for my case to be called on and watching others ahead of me in the list.

One chap made me laugh, he went into the dock where he entered a guilty plea to an assault charge, I think it was ABH.  The judge said he would like a pre-sentence report before passing sentence and that the defendant could have bail until it was ready.

Leaving the Court, the defendant was shaking his head and moaning to his wife/girlfriend about the terrible system and how much time and money it wasted in not dealing with cases quickly.

He didn't seem to have thought that he could have saved all the time and money by simply not launching his unprovoked attack on an innocent bystander.

It's all my fault

As the title suggests, it really is all my fault... must be two judges said so.

Problems with two cases have been blamed on me, one quite bizarrely and the other because the judge seems intent on not listening .to the facts of the case.

First, yesterday I got a call to let me know that one of my clients was in court for his custody time limits to be extended.  This surprised me as it was the first I'd heard of it.  Turns out that the prosecution had notified the firm, by fax, of their intention to apply to extend the time limits at 9pm on Tuesday night.  Unsurprisingly, come Wednesday morning at 10am nobody was at court for the defendant and because it is the school half term it was surprisingly difficult to find cover.  Somehow the judge seemed to believe that this was my fault and ordered that we attend.

Second case was today.  One of the trainee solicitors who is about to qualify is handling the case, I'm supervising but as the "solicitor" I get the blame - which is fair enough.  We have been trying to obtain an expert report there have been the usual problems, first with the Legal Services Commission taking nearly three-months to finally agree to pay for the expert then there were disclosure problems - for example one of the prosecution solicitors went on a three-week holiday and inexplicably took the papers with her thus preventing our expert seeing them.  Once the expert did see them he said he needed more disclosure, which was duly arranged and provided.  All in all, the various delays have taken up the whole year to date.  The judge complained he had not been kept up to date with the disclosure problems despite there having been several hearings during which we formally asked the court to order the Crown to serve the evidence!

Today the judge asked me to attend to explain why I should not be personally liable for some of the costs of this case.  He decided not to award costs against me, but still criticised the handling of the case even though we are actually ready for trial. 

I have to wonder exactly what I have to do for something not to be my fault in the eyes of judges at the moment.

Tuesday, 19 October 2010

Steralisation for cash

Last night I caught half off InsideOut, a TV show on the BBC (I think) that was discussing whether drug addicts should be offered cash in return for agreeing to be sterilised and thus never having children.  Also, on the show was one of Margaret Thatcher's former advisers who said that he advised Maggie to bring in a system of compulsory sterilisation that would form a sentence of the courts.

I'm talking purely now about the offer to pay rather then the forced sterilisation, which the Daily Mail would have a fit over if it was happening in any Arab country.

I honestly don't know how I feel about this suggestion.  On the one hand, I find the idea of twisting the arms of the desperate and often mentally incapable (due to their drug use) quite unpalatable. 

On the other had, I've had dealings with drug dependant mothers and fathers whose children live the most miserable lives that the authorities seem unable to improve.  One girl I came across is regularly in court for one thing or another.  I was informed by the Youth Offending Team that they are certain that this 13-year-old child is being prostituted by her mother on a regular basis to adult men so that mum can buy drugs.
Many of the clients I deal with come from homes where one or other parent is a drug addict and it isn't difficult to see how they end up in the care and court systems.

I wonder what other people's views on this subject are?

If you didn't catch the programme, the charity behind the idea is Project Prevention - I'm sure they have a web presence you can google if you're interested... I'm not sure I want to put up a link here.

Monday, 18 October 2010

On the light side

I have just read this story about three 18-year-olds who tortured a 17-year-old aspergers sufferer in a very nasty attack.

They apparently received a community sentence of 3-months curfew accompanied by 80-hours unpaid work.  I can only hope that the reporting of this story is hopelessly wide of the mark for I cannot think how the actions reported can justify such a low sentence.

Some low sentences can be explained by the existence of a "text".  A text is a letter from  a senior police officer to a judge that explains that Defendant X has provided information to the police that has been very helpful to them in fighting ongoing crime and it asks that the judge reflects this help in the sentence.  A text is never referred to in public and although the defendant's lawyers can see it, a copy is only provided to the judge and nobody else.  Because it is a secret sentences for other offenders are commonly reduced in line with that of the informant's so that it is less obvious that somebody has grassed.  Texts are not common and even when issued do not always result in a massively lowered sentence.

However, even with a text, I am more than a little surprised at the leniency of this sentence based on the press reports.  If anyone has more information about the facts then I'd love to hear them.

On a side note, another reason that this particular report annoys me is because Hazel Blears is one of the few people I actively hate and this story makes me agree with her... grrrrrrrrrrr (even though I'm sure she's only doing it to get her name out there as siding with the victims of crime after she somehow clung on to her seat at the last election rather than because she actually cares about anybody other than herself).

Wednesday, 13 October 2010

Who I and why?

I'm a keen reader of blogs and read a wide range including Bystander's Magistrates' Blog, the Anonymous Prosecutor, several police blogs, Frank Chalk and Winston Smith.  There are others, but those are the main ones.

I just read Inspector Gadget's latest post, in particular this paragraph:
Wayne’s solicitor is clearly speaking about a different person to the one that Mandy and I have been dealing with. The Wayne he speaks of is a loving father to his new baby, a man riven by guilt and remorse at his previous behaviour, a man deeply committed to change, a man who now wants to do volunteer work in his community. A man clean of drugs who has, yes, failed his last two drugs tests at probation, and missed the last twelve, but still, he is trying. This is  a very changed man your worships. Changed even since the last time, and the time before that, when he was also changed from the time before that. The solicitor is cleaver. He doesn’t believe a bit of this. He is careful to say ‘my client tells me that….’ before each lie. But school fees are school fees.
I suspect from Gadget's final remark about school fees that he places defence lawyers in the same category of wrong 'uns as our clients.  This is not a unusual attitude in my experience.  Most people realise that lawyers have a job and do that job, but some people think that we are somehow colluding to get our clients off at all costs.  I think every defence lawyer will at some point experience the onslaught of a non-lawyer (probably in the pub) who wants to take you to task about your dealings with criminals and will ask you repeatedly how you can do you job etc etc.  So, I thought I might try to explain what we actually do.

Do we help clients fabricate their accounts to escape justice?  Well, the truth is that yes some solicitors will do that.  In the same way that some police officers are corrupt, some medics kill their patients and sometimes a sportsman will take a bribe to throw a game.  Should they do it?  Of course not and the sooner such people are caught and thrown out of the profession the better.  Like most solicitors I am honest and am not interested in helping a client make up things to get him off.  When I hear of solicitors risking their career and putting their families in financial jeopardy I am always amazed at their stupidity.

For the vast majority of solicitors in my field, the job involves obtaining disclosure whether in writing or orally from a police officer at the police station.  I then make an assessment of that evidence - what is it?  Is it reliable?  Does the evidence support the charge/allegation?  Is information being kept from me?  At police stations pre-interview it is common in serious cases for some information to be kept back as officers are not required to disclose any of their evidence if they don't want to.  I'll look at a whole range of other things including whether the evidence is actually admissible etc.  Once that is done I'll speak to the client.  I'll tell him about the evidence and my views of it.  I'll explain the law both what the prosecution need to prove to convict him and any defences that exist to the allegation.  As part of this, I will listen to his account.  After that is done I will give him some simple advice along the lines of you need to plead guilty or not guilty.

It's up to the client whether he accepts my advice, most do but some don't.  One client refused my repeated advice that he should plead guilty to a burglary charge on the basis that he was seen climbing out of the window where his finger prints were found on the inside.  He refused my repeated advice and we went to trial at the crown court.  Now this presents an interesting challenge that Gadget alluded to in his post.  I don't really believe what the client is saying; however, I have a professional duty to act in the client's best interests and am barred from refusing to represent him once a retainer is in place.  This is how you sometimes get to the point of hearing cliches such as "I am instructed that..." or "My client tells me that..."  On a side note, we've all done it but I think that this is very poor advocacy and it is the sort of thing that previous Lord Chief Justices have frowned upon - anybody with any common sense knows that if you say "John loves his son and wants to change his ways" then you can only be relaying information from John so why say it in the first place.  In any case, now that I am instructed I have to continue unless I become professionally embarrassed - and not believing a client is insufficient for that test.  In the case of my alleged burglar he went to trial and much to my surprise was acquitted by a jury in less than 15 minutes!  In other cases, ignored advice has led to a more predictable outcome, with the consequence that the client loses the reduction in his sentence he would have received for pleading.

  Of course you wouldn't and if you ever find yourself accused of a crime you didn't commit (or maybe one you did) you'll be pleased that there are people like me ready to help you.

You may (or may not) be wondering why I became a solicitor.  Did I do it out of a sense of justice?  Do I hate the police/authority?  Was I hoping to become rich?  Well, the answer to all of these questions is NO.  The truth is I'm not sure how I got here.  I've never had the almost religious urge to fight for justice that some lawyers seem to have.  Outside of work I've only ever had positive encounters with the police (including the time I was pulled over for jumping a red light).  I definitely haven't become rich doing this job, although I'm not about to pretend that I'm on the breadline.  But, I'm here now and I will carry on doing my best for clients no matter what their circumstances and I'll still put forward their instructions no matter how unbelievable their claims may be.

Here goes....

Welcome to my new blog.  This is my first ever effort at blogging and even though I am already typing I don't really know what I am going to be talking about in this first post.  So I guess I'll just tell you a little about myself and what I do.

I am 31-years-old and I work in east London, Hackney to be exact.  I work for a small two-partner firm of solicitors specialising in crime.  Although we call ourselves criminal defence specialists, in fact the firm does more than just defence.  Others in the firm also carry out a lot of appeal and prison law work.  For those who aren't familiar with prison law, it encompasses everything from a prisoner who has broken the rules and is facing disciplinary proceedings to those serving life sentences who are looking to be release on appeal.

Anyway, this post isn't supposed to be about the firm it's about me and what I do.

I am a duty solicitor, so if a suspect is arrested and wants "the duty" I am one of the lucky soles who gets a call at 3am asking me to pop along to the police station.  It also means that I attend magistrates courts to represent those who are appearing without a solicitor to represent them.  Over time I'll be talking much more about both of these topics.

As well as the duty work I am a solicitor-advocate.  I originally trained as a barrister before converting to become a solicitor.  Being a solicitor-advocate is pretty much like being both a solicitor and barrister, you get to do the litigation thing and show up to court once in a while with your wig and gown.  Again, I'll be talking more about the fun, games and derision to which an advocate (particularly a solicitor-advocate) in the Crown Court experiences.

I'll probably also end up posting a few angry rants at some point - I do rant, I'm afraid.

As a solicitor, I have a duty of confidentiality toward my clients, so if you think that I am talking about a case you are involved in then you are almost certainly wrong as I will be editing the facts sufficiently to protect my client's confidentiality while (hopefully) getting my point across.

I will try to be informative when I write and maybe even entertain one or two of you.  I'd like to read any comments people have as I post more content.  In the past, I have read quite a few blogs and have posted my views - sometimes the responses have re-enforced my opinion and sometimes the comments have changed my mind completely, so do please post.