Thursday, 30 June 2011

What would you do?

Having just read a set of case papers, I was struck by the reaction of one witness to what he describes as a group of 3 men and a woman viciously attacking a lone man on the street outside his home.

Let's imagine that you wake up in the early hours to see a man taking a serious beating on your doorstep, do you:

1. Watch for 10 minutes;
2. Find your iPhone and video the attack;
3. Hide so that the attackers don't see you at the window; or
4. Call the police.

In this case the man did the first three.  He watched for ten minutes then when a break in proceedings came along he found his iPhone and videoed part two taking care to hide so he wasn't seen. 

At no time did he think to call for help.

Wednesday, 29 June 2011

Comparing apples and pears

I have just listened to the latest Today programme on the BBC website catch up service.

I had to laugh when I heard Ken Clarke accuse the head of the Bar Council of being disingenuous for comparing the legal aid spend in England and Wales with that of our closest neighbours in Europe only then go on to point out that our spend is four-times that of New Zealand.

New Zealand seems like an odd choice I thought.  I've never been but I always thought it was quite a small country in terms of population.

When faced with points like that my first reaction is to turn to the CIA for assistance.  As ever the Central Intelligence Agency was very helpful in pointing out that the UK (admittedly including Scotland and Northern Ireland) has a population of 62,698,362 while New Zealand has a population of 4,290,347.  The CIA also helpfully point out that London has a population of 8.615 million, which while I've never been very good at maths looks like more than twice the size of New Zealand in just one city.

If Ken is right about us spending just four-times more than New Zealand while having a population about fourteen-times larger then I think we're doing pretty well.

Police bail limited to 96-hours

I have just read a BBC report saying that a court has ruled that the police cannot bail anybody for more that 96-hours or 4-days.  The BBC are a little late with this story as it was reported by CrimeLine last Friday, but there you go.

The case, called Greater Manchester Police v (1) Hookway, (2) Salford Magistrates' Court, is a judicial review brought by the police following a refusal by a District Judge to grant further time for them to question a murder case suspect.

CrimeLine's Andrew Keogh (a well known and highly respected criminal lawyer who provides extensive training for much of the criminal law world) described the judgment as "... one of the most bizarre cases I have ever read... ".  He goes on to say that he understands the case is being appealed, which is not a surprise.

Before going on, I should explain for those who do not know that when a person is arrested the police have 24-hours in which to question the suspect and make a decision whether to charge the person or not.  In serious cases, a police superintendent can extend the time limit and a further extension can be sought from a magistrates' court.  The time the police have to hold a suspect is often called the custody clock and it usually starts to tick from the time a suspect arrives at the police station, which in reality often means the time he is booked in by the custody officer.

There are a number of possible outcomes from this case and it is entirely unclear which of them is correct in law.  First, the case could apply to all bail cases, meaning that the custody clock continues to tick when a person is released on bail.  Secondly, it could mean that it applies to any extension beyond the usual 24-hour period.  Thirdly, it might apply only to cases involving warrants of further detention.  Finally, the judge could well have just got in a muddle and made a bit of a pigs-ear of the whole thing.

I am a little surprised that the Police and Criminal Evidence Act 1984 does not clearly state whether time spent on bail counts against the custody clock; however, I suspect that since the Act constantly refers to "detention" periods the authors simply thought the point so obvious as not to require explanation.  In any event, I believe that s. 47(6) implies that time on bail will not count toward the custody clock as it states that time spent in detention before the grant of bail will count as well as time spent in detention when the suspect answers bail.  I also note s.118 of the 1984 Act expressly defines the meaning of police detention and that does not include any mention of time spent on bail.

I wonder whether this will turn out to be a storm in a teacup.  I see from paragraph 22 of the judgment that the warrant issued for the suspects detention allows detention for a period "from the time of issue of the warrant".  I don't know if this is how all such warrants a phrased as I haven't seen them all, but I suspect that the problem can be solved with a very simple bit of re-drafting.

Tuesday, 21 June 2011

Are further restrictions on your rights coming?

The new Legal Aid, Sentencing and Punishment of Offenders Bill has been published.

Clause 12 allows for suspects in police custody to be represented.  This is good as the right to free legal advice has been with us for a long time now.  A lack of legal advice has also led to convictions being overturned by the appeal courts for various reasons that would not have occurred had a solicitor been present.

However, clause 12 appears to be slightly different to the current position, which allows for representation to be provided quickly for most detainees.  Clause 12(6) is concerned with regulations that a civil servant (probably the head of the Legal Services Commission) will be able to make regarding the hoops that must be jumped through before you can receive advice from your police cell.  It reads:
Regulations under subsection (5) may, in particular, include——
      (b) provision permitting or requiring applications and determinations to
           be made and withdrawn in writing, by telephone or by other
            prescribed means,
Does Parliament seriously intend that somebody arrested and sitting in a police cell should be required to fill in a form, submit it to a solicitor who will then pass it to the LSC who will consider the application, make a decision and return the completed application?  Bear in mind that the LSC is the organisation that said legal aid applications at their new central processing unit would take just three-days and are now running with a four-week backlog, which is looking like it could become a 6-week backlog very soon as application processing is way behind applications being submitted!

What happens if John is arrested in the middle of the night?  Will the LSC be working 24-hours a day?  To be frank you're lucky if you get an answer from them before 9.30am or after 4pm at the moment.

Call me cynical, but I happen to believe that this type of policy has two purposes a) to reduce the legal aid bill by making it harder to solicitors to claim; and b) to increase the conviction rate by reducing the level of representation suspects receive.

What is more likely to happen though is that it will simply push up the administrative costs of funding legal aid, which are already very high.  It will also lead to more lengthy legal arguments at court to the effect that interviews should be excluded for various reasons.  So, in the end it will push up the overall cost of legal aid by simply transferring the payments from solicitors to Counsel with an uplift as Counsel's daily fee is higher than a single police station attendance and increasing the admin costs.  There probably won't be much of an increase in conviction rates either as a lot of interviews will simply be excluded.  And, I bet there will be a few challenges to this policy through the European Courts at some point, which the Government will have to defend at huge public expense.

Wednesday, 15 June 2011

Who is failing child sex abuse victims?

This morning I read a report on the BBC news website saying that Barnardo's claim that child victims of sexual exploitation are being failed by the Criminal Justice System.

There are a number of different offences that you might chose to call child exploitation that range from rape of a child aged under 13 through to causing a child to watch a sexual act.  In between are offences such as meeting a child following sexual grooming and abusing a position of trust (which unlike other offences has an age of consent of 18-years not 16-years, so if a teacher had sex with a 17-year-old student with his or her consent the teacher would be guilty of an offences).

In criminal law, to secure a conviction the prosecution must make an allegation (the charge or indictment) and must then prove so that the jury are sure (in old language this was beyond reasonable doubt) that the defendant is guilty of the offence charged or indicted.  The proof is shown by producing evidence, which could be the testimony of a witness, CCTV, DNA, fingerprints, financial records, telephone records or pretty much anything else that you can think of.  This is the same process for sexual offences as it is for theft or drink driving or anything else.

Sexual offences have long been said to have very low conviction rates both in themselves and when compared to other offences.  Some people claim this is because the system is prejudiced and others claim that it is because of statistical anomalies.

Barnardo's chief executive Anne Marie Carrie said, apparently in respect of the CJS that, "we need to see drastic changes to make sure the abusers who control such vulnerable children for sex and personal gain are brought to book."

In the time I have been in practice drastic changes have already been introduced.  When I began work a victim of rape, for example, would have to come to court and give evidence live in the court room before the man she said raped her.  In fact, it was even permissible for the defendant to cross-examine the victim himself!  Even where he did not do the questioning he would be able to see her at all times and many victims found this very uncomfortable and difficult to deal with.  Particularly, as at that time it was perfectly lawful for the defence to question her in detail about her sex life in an effort to show that she was promiscuous.  Back then previous convictions for similar offences would be very difficult to introduce before a jury.

Today, evidence is often pre-recorded at the time that the victim makes the initial complaint in a special interview room with specially trained police officers asking the questions.  These videos are commonly played as the victim's evidence.  It is still necessary for a victim to be cross-examined by the defence; however, nowadays the victim can chose whether to give evidence in court from behind a screen where the defendant and public gallery are unable to see her or via video-link or live in court in the normal way.  The Defendant is expressly forbidden to cross-examine the victim personally.  No questions about the victim's sex life are allowed unless an application has been made before the trial to the judge and I can assure you that it is very difficult to get a judge to agree to such applications and when they do agree questioning is strictly limited.  Also, it is becoming increasingly easy for the prosecution to adduce evidence of bad character on the part of the defendant.  Bad character could be previous convictions or even previous unproven allegations of a similar and independent nature.

Of course, things could be made even easier for the prosecution quite easily.  But, for every change you make that means conviction is easier you must balance that with the likelihood of a miscarriage of justice occurring.  My memory of the news as a teenager is characterised by hearing of miscarriages of justice coming to light what seemed to me like every other day.  When I first studied law, I was indoctrinated with the maxim that "it is better for ten guilty men to go free than for one innocent man to be convicted" and was taught stories of when the innocent had gone to prison.  I'm not sure whether that maxim is still taught, I suspect not.

The problem with prosecuting sexual offences, particularly against children, is that the allegation often doesn't come to light until a long time afterwards by which time there is no forensic evidence.  Even in a "stranger-rape" case, if the defendant is saying that the victim consented to sex then the forensic evidence may be of limited value.  A typical sex case will be the word of one person against another.  Where a jury has to be sure that the defendant is guilty it is quite hard for them to convict.

With the greatest of respect to Barnado's, I think they have missed the point and identified the wrong problem.  It seems to me that the job of the Criminal Justice System is, for the most part at least, to mop up the mess when things go wrong.

The real problem is not the lack of convictions but the number of offences being committed.  Since I began work as a solicitor, organisations have become more careful about the people they employ; however, checking previous convictions will not inform you of people who are a danger but who have not been accused of a crime before, such as Paul Anthony Wilson who I understand had never been in trouble before he applied for work at a nursery.  What needs to be done is for a proper thorough system of supervision to be in use at places where vulnerable children are at risk of being abused.  Barnado's themselves have been guilty of failing to properly supervise their staff in the past as a quick Google search of "barnardo sex allegation" will show you.  You might also read the excellent blog by Winston Smith, which isn't strictly about this issue but does show the disorganised way in which establishments homing vulnerable young people are managed.

Are the courts failing the victims or should the authorities be doing more to prevent these children from becoming victims in the first place?

Thursday, 9 June 2011

Be careful what you wish for

Following Ken 'The Beast' Clarke's announcement of his policy of reducing sentences for sex offenders by 50% in return for a guilty plea a lot of solicitors and barristers felt that this was a bad idea and that it should be scrapped.  Low and behold it now has been scrapped.  But where does that leave the lawyers?

There is talk that scrapping this plan will cost in the region of £130 million.  This means that the Ministry of Justice will have to find another way to save that money or they could ask the Treasury for a hand out.  If the Treasury gives them the money then all the other departments will coming running with their begging caps held out.  So, a Treasury bail out looks pretty unlikely to happen; the MOJ isn't a bank after all.

What then are the MOJ to do?

They could scrap the Victims' Commissioner but I doubt that would save much money and would definitely make bad headlines in the Sun, although I know a few bloggers who would be pleased to see the back of Louise Casey.  They could abandon the Commission on a Bill of Rights, which to be honest just sounds like a complete waste of time and money - imagine the Daily Mail's reaction to another Human Rights Act style piece of legislation.  That might actually save some cash if you look at the make up of the committee.

The problem for the MOJ is that they do a lot of things that either are important or sound important and cutting them will either actually be bad or, more importantly from their point of view, will sound bad.

Of course, they also control Legal Aid.  Now while I think legal aid is important I know a lot of people disagree and are happy for defendants to be unrepresented or inadequately represented at trial (well until it's them or their child in the dock that is).  Further cuts to the legal aid budget would probably help the MOJ anyway since less money means lawyers have to try to handle more cases and thus pay less attention to what they are doing and so the conviction rate goes up.  Frankly, it's a win win for the MOJ, they cut funding to people that hardly anybody cares about anyway and they can shout from the roof tops about how they are bringing more offenders to justice!  Plus, as we saw with the new assault sentencing guidelines less people will be sent to prison in any event and when they do go they'll get shorter sentences so there will be very little increase in costs for the prisons.

So, while lawyers may have got what they wished for they may now have to pay the consequences.

I know what you're thinking by the way, "typical lawyer always looking out for himself".  What else would you expect?

Edit - barely minutes after posting this, I discovered that I'm not the only one thinking it

Edit 2 - clear Mr Clarke is a fan of this blog and doesn't want me upset as he has just ruled out any further cut to legal aid.

Monday, 6 June 2011

Waiting game

I arrived at court bright at early this morning to represent my client for GBH.

It's 10.30am now and there's still no sign of any prosecution papers or the client who is being brought from the police station. Also, they claim we have a judge but no sign of one yet!

In the old days we got paid to wait so I wouldn't have minded the delay so much. But these days we travel and wait for free.

Edit - after writing this I realised that in fact as this is a hearing known as a section 51 transfer, we don't get paid for any part of it whether it's travel, waiting, preparing, advising or conducting advocacy.  As I arrived about 9am and left court around 2.45pm that's quite a bit of free time I contributed.  Who said that solicitors don't give good value for money?

Thursday, 2 June 2011

Advocates to be assessed by judges

The Solicitors Regulation Authority have today approved a scheme whereby advocates will be assessed by the judges before whom they appear.

This is an interesting decision for a number of reasons.

First, the scheme has attracted widespread criticism from judges who a) don't want the extra work; b) object to being asked to undertake a lot more work for no extra pay; and c) do not necessarily have any advocacy experience themselves, or their experience is from decades past (okay they don't admit to the last one but it's a very real point).

It is also interesting for the SRA to approve this scheme since it appears to undermine part of their function, which is to regulate solicitors rather than allowing judges (most of whom are not solicitors) to conduct a significant portion of that regulation.

I also find it a difficult decision to stomach as a number of judges are hostile to solicitors conducting Crown Court advocacy.  This is an attitude common at the Bar, just the other week I was in the robing room at Snaresbrook Crown Court when I overheard a QC telling his junior how pleased he was to have a barrister as a junior - he commented that his last junior had been a solicitor and said that he was a very competent advocate but that he just doesn't like solicitors doing advocacy.  An opinion he had neglected to mention when accepting the Brief!  In late 2009, HHJ Gledhill QC took umbrage at a number of solicitor-advocates who appeared before him.  He criticised them heavily saying they were not up to the job of representing their clients (although he decided that they weren't so incompetent that he could use his powers to stop the trial and he glossed over the fact that one of the inadequately represented defendants was actually acquitted!).  In early 2010, HHJ Gledhill QC was forced to "express his regret" for his completely outrageous behaviour toward the solicitors.  Personally, I thought that Gledhill's behaviour showed a distinct lack of sound judgment, a character that is looked for in Judges.

I have had quiet conversations with judges over a few drinks where they have been honest enough to express their dislike of solicitor-advocates, although always saying that they would always treat a solicitor fairly and wouldn't admit their real position openly.

Given the open (and often hidden) hostility from some members of the judiciary I really am surprised that the SRA have agreed to this plan.

Wednesday, 1 June 2011


As I sat in Richmond Mags Court this morning I thought of a topic for a really great post.  Unfortunately, I have since forgotten what it was, so instead I will simply mention that last Saturday Amnesty International celebrated it's 50th birthday.  I've been a member for a number of years, although not terribly active in the past couple if I'm honest.

If you have time to write a couple of letters once a month or can help in any other way then check out their website and join them, I think it's about £24 for what I think is a lifetime membership.