Tuesday, 24 May 2011

Respecting the police could end in your arrest

Last Friday night I had been out for a drink with a couple of friends (ironically one of them a PC from British Transport Police).  After we left the pub on the Strand, I decided to walk up to Buckingham Palace and catch a cab home.  On the way, I stopped to look at the memorial to police officers killed on duty that can be found just past Admiralty Arch on the Mall.

Apparently, paying your respects to police officers who have been killed is highly suspicious activity. 

A couple of minutes later as I walked up the road toward the Palace, four police cars descended on me and the officers within demanded to know what I was up to as they'd had a report from a CCTV operator that I was acting suspiciously.  My ID was checked and I promise I've never been so relieved as when I heard the words "no trace" come across the radio followed by confirmation that I hadn't done anything to the memorial.

I mention this story partly as an amusing story but also as a reminder of what paranoid times we live in.

PC to be prosecuted for manslaughter

In a brave decision, Tim Owen QC has advised the CPS and Keir Starmer in particular that PC Harwood should be prosecuted for manslaughter over the death of Ian Tomlinson.  I say brave as they may both now find themselves facing the ire of police officers across the country.

I am not quite sure that Keir Starmer meant when he said that the inquest had allowed "a degree of clarity to emerge" regarding the medical evidence.  It sounds as though he is saying that the medical evidence wasn't clear when the CPS took their original decision not to prosecute.  If that is the case it rather beggars the question: "Why didn't they CPS seek clarification prior to making the original decision?"

Tuesday, 17 May 2011

Bail in criminal cases

Following the remand into custody of Dominique Strauss-Kahn the head of the International Monetary Fund, I thought I'd say a few words about the subject of bail.

There have been some high profile cases where serious crimes have been committed by those on bail, for example Police Inspector Gary Weddell who was released on bail for murder and subsequently committed another killing or that of  Garry Newlove, who was murdered by a gang, one of whom was on bail.

In England and Wales, section 4 of the Bail Act 1976 entitles a suspect in a criminal case bail except in certain circumstances or where the suspect is charged with treason, some form of homicide or rape.  The main three reasons for refusing bail are that the court has a real fear that:
  1. the defendant will commit further offences while on bail;
  2. will fail to surrender to bail; or
  3. will interfere with witnesses or otherwise try to obstruct justice.
When considering bail, the court is required to consider the prosecution case from it's strongest angle and no consideration is given to the defence case unless it impacts upon the strength of the Crown's case, e.g. the defence are in possession of forensic evidence that undermines the prosecution case.

A defendant can put forward arguments and agree to do certain things to persuade the court that he will attend court, will not commit offences and will not interfere with witnesses, these are called bail conditions and breaching any of them allows the police to arrest the defendant immediately and bring him or her to court where the defendant may lose his bail and be sent to prison to await his trial.

In the case of Dominique Strauss-Kahn, according to one BBC report he was arrested while boarding a plane to leave the US for Berlin.  That fact alone would give any court in England or Wales cause to suspect that he was a flight risk and refuse him bail.  Although, I suspect that he probably would have been released had this happened in this country, albeit on bail to surrender his travel documents and with a surety or security (former is where somebody promises to pay £x if the defendant breaches his bail and latter is where the money is paid up front and only returned once bail has been complied with) and some other bail conditions.  You can watch the prosecution's submissions against bail and if you are interested in what happens in an English court then it's a good video to see, while the layout is completely different everything else is pretty similar; note the huge collection of papers to the prosecutor's left and that it takes him a while to get into his stride causing him to repeat himself a few times as he sounds like he might be about to flounder, which is probably thanks to having only seen the papers a few minutes before the hearing began and having 30 other cases to prepare at the same time.  Just like this country.

I went to see somebody today in prison who is accused of robbery.  He insists he didn't do it and I have to say that the evidence against him is weak.  I made the point at the bail application that the case is relatively weak and the judge agreed.  However, bail was refused because this particular client has made a habit of breaching his bail and the courts have simply run out of patience with him, so now he gets to spend time in prison for something I actually think he didn't do.

The big problem with bail is that it will never be perfect... note that, it will NEVER be perfect because it is a decision made on the spur of the moment by somebody who really doesn't know much about the defendant or the allegation.  The trouble is that there really isn't much you can do to improve this situation, not unless you are going to say to hell with the cost and increase the size of the court, probation and prosecution services by a factor of 100 so that they can all take time to properly investigate and consider ever bail application before them.  Even when those resources are thrown at a case they are not always successful.  In the case of Inspector Gary Weddell, Dr Tony Nayani gave a psychiatric report about the risk of Weddell committing suicide.  Neither the fact that Tony was only asked whether Weddell was a suicide risk nor that it was another six-months before Weddell committed his next offence stopped the press from hauling the doctor over the coals so much so that Tony Nayani eventually killed himself.  Now, I should say I am a little biased in this case as I knew Dr Nayani (at one point I was even going to do a clinical placement in preparation for a Doctorate in Clinical Psychology with him before I decided to become a lawyer).

One alternative is to simply lock everybody accused of a crime in prison.  But, trials can take a long time to come around and what if it was your son or daughter locked up for something they didn't do?  What if it was your boss put on remand for 10-months causing you and all your colleagues to lose your jobs and ultimately your family to lose their home... does locking everybody up accused of a crime still sounds like a good plan?

So, bail is something that really never will be perfect and will always attract headlines when it goes wrong.

Monday, 16 May 2011

Changes to motoring offences

The Government recently released its Strategic Framework for Road Safety, which looks at the causes of serious road accidents, identifies areas that need to be developed and introduces some sensible and not so sensible plans for driving offences.

Fixed penalty notices

The most talked about plan is the continuation of Tony Blair's policy of excluding the courts from the Criminal Justice System through the use of fixed penalty notices and effectively turning police officers into road-side prosecutors, judges and juries.

The latest batch of fixed penalty notices will allow police officers to punish careless drivers with an on the spot fine.  The Framework gives two reasons for this change.  First:
"... to make it more efficient and less time consuming for police to enforce."
Sorry to any officers reading this, but if we render that sentence into plain English, it would appear that the Government are suggesting you are all too lazy to take cases to court.  The second reason is:

"... [to] enable more people to be offered rehabilitative education... "
With the greatest of respect to the Government, this reason doesn't make sense.  Why must further education go hand in hand with a fixed penalty notice?  Why, for example, can't the courts offer this training after prosecution?  Oh hang on a minute they do already do that.

More importantly than that from a drivers point of view is that the Framework also makes clear that the Government plan to increase the fixed penalty fine from £60 to £100 for virtually all fixed penalty offences, including speeding etc.

Drink and drug offences

The Framework also contains plans, albeit not very advanced plans, to level the playing field as between drink and drug driving offences.  This is partly a technical issue about developing and using tests to identify people suspected of driving under the influence of drugs.  There are however changes that also show more Blairesqe thinking in their approach to prosecuting offences.

Currently, if you are breath tested and blow within 40% of the prescribed alcohol limit then you are offered the option of a blood test to confirm the level.  There is a very good reason for this, which is that blood tests are far more accurate than the breath test.  However, under the proposals in the Framework, drivers will no longer have the right to take a blood test if they blow below 40% of the limit.  The explanation given is that it will "... increase the effectiveness of police enforcement activity... ", although you may also read this as "it's one less hurdle for us to get over on the road to improving conviction rates."  They do also make the good point that it is unfair to let some people get off because there is a delay in getting a properly qualified medic to take the blood sample; so, no more star jumps in the cell while you wait for the FME then.

Interestingly, the Framework goes on to explain that there will not be a decrease in the drink drive limit as 40% of offenders are more than 2.5 times over the limit.  If that is the case, then I don't fully understand why they need to remove the blood option as they themselves seem to think it will hardly affect anybody.

Increased level of forfeited vehicles

The Framework moves on to express a desire that the police will make more use of their powers to seize vehicles used by people who commit road traffic offences, but it does not provide any particular suggestions as to how this could be achieved.

Uninsured and unlicensed drivers

I imagine that it is fairly obvious why unlicensed drivers are involved in a disproportionate number of serious crashes, but it may not be so obvious why uninsured drivers are similarly involved in high numbers of serious crashes.

Personally, I put the reason down to being that people willing to take the risk of not buying insurance are more likely to take the risk of driving more dangerously than others... I heard a policeman put it in terms once that people who commit one type of crime tend to ignore other areas of law as well.

This part of the Framework contains some interesting proposals... one so interesting that I'm surprised Liberty aren't complaining about it.  The Framework suggests allowing insurance companies access to persona information about drivers from the DVLA database so that they can make a more informed decision when offering insurance to us.  This means they'd be no hiding place for people who 'forget' to declare convictions.  I don't personally mind this, so long as the insurance companies cannot make changes to the DVLA database - I say that after having to contact my biker insurer to tell them that since I took the policy out two years ago they have managed to change all of my details for no obvious reason, so according to them I now had only lived in the UK a couple of years, am married with no children and have no convictions for speeding, one of those at least is nice.

This is one area where they have clear plans about seizing vehicles and the Framework states that from June 2011 the Continuous Insurance Enforcement will fine people and seize the vehicles of those who fail to insure their vehicles without first notifying the DVLA that their vehicle is off the road (a SORN declaration).


The Framework is quite a lengthy document that combines details of problems, with half-thought out ideas and a sprinkling of actual solutions that will become law.

The important thing to take away is to remember:
  • If you are offered a fixed penalty notice then take legal advice before sending the form back to the court.  You may find you have a defence or could save yourself the expense of fighting a doomed case;
  • Remember to buy that insurance before your old policy expires or you could find yourself with a fine and court bailiffs trying to seize your car.

Monday, 9 May 2011

I'm drowning in forms

We hear in the press a lot about how the police have too many forms to fill in, but one of the reasons that solicitors fees can cost a lot is because we have way more to keep track of.

I have just updated our forms database for weeks 13 to 18 (which is a five-week period if you can't be bothered to count) and various government departments have either introduced or amended 734 forms.  Most of the time these are simply pointless updates that do nothing of any substance, for example, the CDS14 is the form to apply for legal aid and is now in it's ninth edition after being introduced about three-years ago.  Now bearing in mind that the merits criteria for granting legal aid has not changed in 45-years since it was recommended by Lord Widgery in his 1966 review you might wonder why the LSC needs to release so many updates to its forms.   You might also wonder whether government organisations could better use public funds than paying teams of people to re-draft forms so frequently.

Incidentally, the questions on the CDS14 form that deal with whether a case is serious enough to merit legal aid have not changed at all in my career, all that has changed is the amount of superfluous information required, such as whether the client is a man or woman; black, white or some other colour, etc.

It's also worth remembering that the Coalition Government promised to reduce the amount of red tape for businesses and even went so far as to say that they wanted Britain to become one of the easiest and fastest places to set up a new business in the world.  I've yet to see any reduction in red tape.

Thursday, 5 May 2011

Wasting time

I am currently in court where my client is ineligible for legal aid and says he lacks the funds to pay for his defence privately. He has found a lawyer he wants to represent him, me. Because of the nature of the allegation he is not allowed to cross examine the complainant. An order under s. 36 of the Youth Justice and Criminal Evidence Act 1999 would allow me to cross examine the witness on his behalf even without legal aid. However, for some reasons the court wants to list a second hearing to decide whether a solicitor should be appointed to handle the cross examination.

I don't see what is going to change between now and then. The only thing that this delay does is causes the witness concerns about who will be questioning her and adds yet another hearing to an already overloaded court list.

Ironically, the clerk who advised the bench to delay their decision spent the adjournment moaning about how busy the court list is!

Tuesday, 3 May 2011

Tomlinson unlawfully killed

The BBC are reporting that Ian Tomlinson was unlawfully killed when a police officer hit the newspaper seller with a baton and pushed him to the ground.

Should the officer now face charges?

There are a few potential charges:
  1. Common assault;
  2. Assault occasioning actual bodily harm (ABH);
  3. Assault occasioning grievous bodily harm, s.20 (GBH)
  4. Assault occasioning grievous bodily harm, s. 18 (GBH)
  5. Manslaughter.

All forms of assault are basically the same; all require an assault (usually by way of battery).  The difference between the offences is the level of injury caused to the victim.  So, common assault there will be little or no injury.  The injury needed to get home on an ABH is defined as being "more than merely trifling" and GBH is commonly accepted to involve the breaking or both layers of the skin, although you'd probably find yourself facing a GBH charge if you smashed somebodies skull in without killing them

The difference between the two types of GBH is that s.18 requires an intention to cause the injury, while s. 20 can be committed where the injury was caused recklessly.  This is an important distinction as it goes to whether the defendant set out to really badly hurt somebody and is reflected in the sentences available with s.18 carrying life imprisonment while s.20 carries a maximum of 5-years.

I doubt the CPS would ever be able to prove the men rea for s.18 GBH, which is that the defendant intended to cause the injury, so we are left with possible charges of s. 20 GBH, ABH, common assault or unlawful and dangerous act manslaughter.

It is difficult to say whether the prosecution could have charged with an assult requiring injury without knowing what injuries were caused.  However, the officer could have been charged with common assault except that the Director of Public Prosecutions took so long to make a decision that the statutory time limit for bringing that charge expired (common assault can only be tried in the magistrates' court and thus must be charged within six-months of the commission of the offence; whereas the others can be tried in the Crown Court so no time limit applies).

Now, unlawful and dangerous act manslaughter requires that somebody has died as a result of the defendant's actions and that those actions were both unlawful and dangerous.  This used to be a charge used when a dangerous driver killed somebody but as the manslaughter bit sounds quite bad juries had a habit of not convicting so the Government of the day introduced the charge of causing death by dangerous driving.  Now, I will say that apart from one appeal case (that is now reported in Archbold) I have never had any contact with this type of manslaughter as it's quite an unusual thing to charge somebody with.

Could the PC be guilty of unlawful and dangerous act manslaughter?  Well, in Andrews v DPP [1937] AC 576, Lord Atkin said that the act must be more than merely negligent, he gave the example of a speeding driver and said that driving is legal.  Driving becomes illegal if you exceed the speed limit.  The law must distinguish between "an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal".  So, we ask the question was the PC's action more than careless and positively unlawful?  In light of the jury's finding it seems the answer must be "yes".  You could mount a defence on the basis that as a police officer who believed himself to be in danger he genuinely thought his actions were lawful, but more on that later.

So, we ask the question was the act dangerous?  This is a question for you to answer, because in the case of Church [1966] 1 QB 59, Edmund-Davies, LJ said that  dangerous meant that the unlawful act "must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm".  It is worth noting that it is irrelevant whether the defendant realised that his actions would cause harm, in DPP v Newbury [1977] AC 500, Lord Salmon said, "... it is unnecessary to prove that the accused knew that the act was unlawful or dangerous".  That was also the view of Lord Lane, CJ in the case of Ball [1989 Crim LR 730.  This is what you could call an objective test - I think in tortuous law they refer to this sort of thing as the Man on the Clapham Omnibus test, which is where you ask yourself what an average chap who travels on public transport might make of a given situation.  It also eliminates the possibility of a legal defence being put forward on the basis that the officer believed his actions to be lawful; although, it does not prevent a legal defence on the basis that the officer's actions actually were lawful.

In the case of Mitchell [1983] QB 741 the defendant hit A who fell onto an elderly lady breaking her leg.  The Court of Appeal held that the defendant's actions were indeed both unlawful and dangerous.  Is hitting somebody with a baton unlawful?  In the normal course of events it is and the jury clearly believed that the officer's actions were unlawful.  Is hitting somebody with a baton  such as all sober and reasonable people would inevitably recognise... the risk of some harm resulting therefrom?  Again I think the answer is yes.  In light of the jury's verdict could the PC be charged with manslaughter?  Yes.

Before deciding whether to charge, the CPS must apply the Code for Crown Prosecutors  In the PIS stage the decision maker must decide whether bringing charges is in the public interest or whether the public are better served by turning a blind eye - the recent guidance by the DPP that people taking loved ones abroad for euthanasia will rarely be prosecuted is an example where the authorities have indicated they might ignore a crime.

I personally doubt that the PC will be the subject of a manslaughter trial and am inclined to the view that to so charge him would not be in the public interest as I have my doubts whether he would be convicted.

If there is evidence for an assault charge that may well be forthcoming, but I think the most likely outcome is that the matter will be left alone.