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.