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!