Wednesday, 21 November 2012

Prisoner mentors could be more use elsewhere

The Government is proposing that people released from prison will have mentors to help them get back to a normal, law abiding life.  This is great news, except that I kind of thought that was what probation was supposed to be doing as part of the supervision that is part of most ex-prisoners licence.  Admittedly probation won't get involved with very short term prisoners, but then again if there are in for such a short time will they have a chance to build up a relationship with their mentor prior to release, which I understand is the whole point?

I'm going to let you into a little secret, which is that the majority of petty crime is committed by people who grew up in poor and dysfunctional homes - at least that's what my experience tells me.  I can name one man who became alcoholic thief despite coming from a very wealthy family, attending private school, university and having all the privileges you could want in life.  But, he sticks in my mind because he is so unusual.  To be honest, the regular punters merge into one because they all have similar stories to tell, which often involves a broken home at the very least, frequently drug and/or alcohol abuse by their parents, often neglect as children but sometimes worse.  I had a prolific car thief who in one spell stole 7 cars in 7 days.  He was about 15.  He ended up in prison; it turned out that he was being regularly raped by his father!  The courts had no power to help him in any significant way and it may have been a mercy for him to go into custody... he certainly did not complain or attempt to avoid that outcome.  He wouldn't make a formal complaint so the police were never interested.

I attended a police station at the start of this week for a 14 year old who had been arrested for a serious offence.  His mother showed up reluctantly after leaving her son in the cells overnight because she did not want to come to the police station.  I understand some arm twisting by the police took place to get her there.  She arrived and spent most of the time I saw her slowly eating her way through the contents of her bag and not paying attention to the very serious position her young son was in.

I could sit here giving examples of parents who simply haven't cared about their children, or who have actively harmed them, all day and all night.

One thing that won't surprise you is that these children all end up in police cells and later prison because their parents have failed utterly to teach them any respect for authority or even how to behave in normal civilised society, which is why so many in this group think it is acceptable to rob and steal, shout abuse at others and so on.  Many also grow up with a notion that benefits are their right and working is for mugs... but that's a whole other story.

The other outcome is that the children become victims of crime.  We've seen graphically how this can happen in the north recently where young girls, who were often in care homes, have been abused.  One thing that rings out from many of the stories is of girls who literally had nobody to turn to.  Yes, there were some who came from "normal" families, but most seem to have come from the same sort of broken family backgrounds that create the petty criminals.

The plan to mentor prisoners after release is rather like the stable owner who bolts the stable door after the horse has bolted.  It also shows a tacit acknowledgement that the probation service is unable to carry out its job effectively - which I suspect is because the government won't fund it properly.  Of course, there's a good reason the government want to focus on prisoners because it is easier to make the connexion in the electorates mind between reducing crime and government activities when you can use words like "ex-offender" or "ex-prisoner" than when you use words like "child".

I've read time and time again about children being turfed out of local authority homes when they turn 16 into their own flat with no support and no idea how to run or manage their lives.  Why not use this mentoring scheme to help children both in care and in dysfunctional families?  Help them build a relationship with a strong adult figure who can guide them and help them?  Such a scheme would cut crime in two important ways.  First, it would help potential criminals avoid a life of crime and secondly, it would help potential victims avoid becoming victims.

Barnardo's already run mentoring schemes to help families and children in just the sort of situations I'm talking about in this blog post.  They help families from when children are young right through to young people at the start of their adult lives.  Imagine what schemes like this could do if they were properly funded by government rather than relying solely on charity!

You can read about Barnardo's work with young kids right through to young adults by following this link... you can even donate if you feel the urge.  Click on the links at the top of the page to see what they do at different ages.

Monday, 19 November 2012

I want to limit your access to justice

I have come up with a brilliant idea that will enable me to grow my business faster, with less red tape and bureaucracy.  It's so simple that I can't believe nobody else has thought it up.

Put simply, I want to make it harder for people to sue me or challenge my decisions.  I think that by doing this I will be able to do pretty much what I like when I like.  This will enable me to take positive decisions, not only for my business and myself but also for the wider community.  Ultimately, I'd like to see a system where it is either unlawful or so mind-numbingly expensive to sue me that it's easier just to let me get on with what I like no matter how much it screws up the lives of other people... I think I'll call these other people the "ordinaries".

By now I'm assuming that you all think I have lost my mind, if you do then you must be a smelly oik ordinary. 

My plan may sound like the ravings of a power-hungry lunatic, but they are exactly what our esteemed Prime Minister wants to impose.  He described challenges to government policy as often being "time-wasting" and blamed lawyers for creating a massive growth industry in challenges to government policy.

I'm no civil lawyer, but even I know that if a claim has no basis in law or fact or is an abuse of the court process then the defendant can apply to strike out the claim at a very early stage in the proceedings in accordance with Rule 3A of the Civil Procedure Rules.  I'm sure that the Attorney-General would have advised Dave C of this rule, which can only lead me to the conclusion that what he really means is that the cases are "time-wasters" because he thinks that anybody with a different view to him is, in one way or another, stupid.

Judicial Reviews are what Davey is talking about.  Now these are not simple applications and I am confident that the vast majority are brought by people who are paying relatively expensive lawyers to act on their behalf.  You do not JR a decision lightly or unless you think that your cause is right and you have a decent chance of winning your case.

This is the latest in a long running effort by successive governments to limit the access of the ordinaries to courts.  In the past they have taken very strenuous efforts to prevent people obtaining legal aid; in most areas of civil law legal aid no longer exists.  The government recently changed the rules so that if a government agency accuses you of a crime and you pay for your defence (because legal aid is no longer available) then you will not get back all of the money you paid out!  All of this creates a system that is harder for the ordinary person to access and thus makes it more likely that people will take the path of least resistence, which is always to agree with the government.  Thus they lose less cases, pay out less in costs to their victims and can claim that they have improved crime stats (or whatever) when in fact all they have done is hidden the problem from sight.

Attacking access to justice is an obvious target for politicians.  First,because it's always dressed up as an attack on lawyers - lots of people hate lawyers and think that we all live in multi-million pound homes, eating from our golden plates and waited on by teams of servants.  Secondly, because lawyers keep telling politicians what to do - as examples I give you Theresa May's response to Abu Qatada's case and the response of Sally Bercow who is being accused of defamation (she appears to have claimed that what is happening to her is all the fault of Lord McAlpine's bullying lawyers).

Attacking lawyers is therefore good because the public love it, party members love it and it helps the government to do things that it would otherwise not be able to do.

Be warned: the government is not seeking to limit your access to justice because they think that your not being able to challenge them will make your life better.  They are doing it because they want to make their own lives easier!  If you read my claim to want to be exempt from the law at the start of this blog and imagined how terrible it would be to have one man immune to the law, then imagine how disastrous it would be to have a whole government virtually immune to the law!

Monday, 12 November 2012

Secret trials and the police state

There are a few things that suggest a country is heading toward a police state, such as the introduction of obligatory ID cards, monitoring of citizens behaviour and movements and taking justice from the public view into a secret world.

How are we doing?  On ID cards we don't have them thanks to some serious criticism despite concerted efforts by both Tory and Labour governments. 

On monitoring, the Sunday Times reported yesterday that Capita have created a database, called One, that contains lots of very personal information about 8 million British children, including addresses, photographs, school reports and some medical information.  Crapita make clear that there is no central database, each council has its own local database.  Crapita also sell software they call API, which allows police, medics, local authorities and quite a few other organisation.  But that's okay because Capita say very few organisations have bought the API software.

Also on monitoring, there is regular chatter from government about road tax, particularly the replacing of the current system with one that charges you per mile driven either through a hugely intrusive CCTV network that monitors your ever move or through the instillation of GPS equipment in all vehicles.

There are other examples, but this blog post is already a bit too long for comfort.

Finally, we move on to secret trials.  Why does it matter if trials are held in public?  In fact, wouldn't it be better if suspects identities were protected by holding all trials in private so that the innocent do not have their reputations tarnished?  Trials are held in public because where trials are held in secret there is a high risk that improper procedures will be used, inadmissible evidence will be heard and fairness will go out of the window.  It may not happen.  It's entirely possible that human nature would not assert itself as it always has done in the past when somebody is given wide ranging powers with little or no accountability. 

Trials are held in public so that the people can see what is happening and keep lawyers and judges in check!  

We already have secret trials in criminal law, the prosecution is allowed to call evidence that is never shown to the defence or the defendant.  It is even presented to the court in the defendants absence.  He has no opportunity to challenge the evidence either through cross-examination or by calling evidence to counter the secret evidence.  If that does not give rise to a serious risk of miscarriages of justice occurring then I don't know what does.  It's true that the defendant has a special advocate appointed who "represents" the defendant.  But, since he cannot discuss the evidence with the defendant and is appointed by the court not the defendant the special advocate can hardly be said to be ideally placed to act for the defendant and, to be blunt, I am not convinced that fulfilling such a role is ethically acceptable for a lawyer, but hey ho what do I know?

The latest calls for secret trials come from the beast that is Ken Clarke, Minister without Purpose, Point or Portfolio.  The new proposals cover civil proceedings and would allow the government to put secret evidence before the court, which cannot be challenged by the claimant.  Bear in mind that the people suing the government will be those who have been held unlawfully and against whom the government has already failed to prove its case beyond all reasonable doubt even with the secret trial procedure available in far too many cases.

It is important to look at the reasons Ken is putting forward for these secret trials, because they will change later on, just like the reasons for war with Iraq evolved over time when it became clear there were no weapons of mass destruction.

The main reason appears to be that secret trials are needed to avoid the government having to pay compensation.  He cites the case of the men who were released from Guantanmo Bay against whom no charges were brought by either US or UK authorities and who were held in captivity for many years and tortured.  Ken says the government couldn't defend their claims because the UK couldn't disclose secret evidence... although remember there is a criminal process they could have used to secure a conviction but chose not to, which says a lot about their evidence!

Robert Buckland (Conservative), a member of the Commons Justice Select Committee, says that secret trials are needed to prevent the flood gates being opened on "... a torrent of new claims."  This is serious, we can't have lots of victims of false imprisonment and torture all seeking redress against their abusers in legal proceedings now can we?  Obviously, terrorists know that the UK government is powerless to defend itself so there must already be a lot of cases in the pipeline?  Er... well there's 20.  Hardly flood gates time.

I don't like to accuse fellow lawyers of misleading anybody, but when Mr Buckland said, "Our enemies will begin to realise that our justice system is an open goal and come rushing with spurious claims knowing the Government will have to pay out", I can't think of what else he was doing.  Nothing prevents the government defending itself and if a claim is "spurious" then it's difficult to see why secret evidence would be necessary.  You might think secret evidence would only be necessary when claiming you were right to treat somebody in the way complained of.

Mr B goes on, "Even more serious, genuine claimants have no hope of getting their claims properly examined."  I must confess to not following his logic here.  As a judge, I assume Mr Buckland is aware that court rooms are not therapy rooms; they exist as a setting where disputes are settled.  If a claimant has a genuine case and the government accepts that then why would the government be going to trial?  They would simply admit liability, exactly as they do now.

You know you have a weak argument when you start saying "that's something Hitler would do", but Hitler did introduce secret trials for treason, which no doubt would cover much of the activities that fall under the modern definition of terrorism.

The reasons for the government now wanting trials held in secret are, to be blunt, weak and amount to little more than a government trying to escape liability for their own actions.

Do we live in a police state?  No.  But, government after government make efforts to monitor us more frequently, more intrusively and for weaker reasons.  They consistently move to limit access of the ordinary man on the Clapham omnibus to justice by making it harder to challenge them or by limiting access to funds, such as legal aid, that are necessary to allow legal actions to be brought.

20th century Germany before the Nazi's was unremarkable in terms of civil liberties.  I doubt many people could have foreseen what would happen in the middle 30's onwards.  I don't suggest that we are about to enter a full police state, but equally you cannot give today's politicians too much power over your life with little accountability because you never know what future political leaders will be like!

Monday, 5 November 2012

Committal hearings to be scraped

The Government are to do away with committal hearings, although it's worth saying that this policy was announced about 16 trillion years ago but nothing seems to have happened since 2001 when committal hearings were abolished for indictable only offences.

I am aware that some of my readers may not have the first clue what I'm on about, so I'll explain a little - if you know what a committal hearing is then skip this paragraph.  All criminal cases begin life in the magistrates court.  Some cases can be tried in either the magistrates or Crown Court, these are called "either-way offences".  If the magistrates decide the case is too serous for them to handle, or the defendant chooses to have his case heard by a jury then the case is committed for trial.  This means that the prosecution are given several weeks to photocopy their witness statements and produce whatever evidence they intend to rely upon.  At a committal hearing the papers are served upon the defence and the court.  If there is a case for the defendant to answer (what is known as a prima facie case) then the case is formally committed to the Crown Court and the defendant will appear there at some point in the future where he will enter a plea and a trial will be heard some months after the first appearance in the Crown Court.

My first ever appearance in court was a committal hearing.  It lasted approximately 30 seconds, I nodded once to indicate I was content for the case to be committed and asked that legal aid be extended to cover the Crown Court hearing.  It was painfully obvious to me that these hearings are pointless, cause delay and expense for everybody involved, including the defendant, court, prosecution, defence solicitors, police and victim (victims don't attend but the committal stage does delay when they get to have a trial and tell their side of the story).

From my first experience in court nothing has changed my view that committal hearings can and should be abolished.  In theory, the committal hearing allows the defence to challenge prosecution cases that lack any evidence against the defendant.  In practise, the committal stage is used by the defence and court to punish ill-prepared prosecutors who fail to get their papers in order prior to the hearing date.

The committal hearing is there to ensure that there is a case for the defendant to answer and so they are, quite rightly, very biased in the prosecutions favour.  Committal hearings remain important because there is no way of easily challenging a case once it has been committed except by taking it to trial.  However, this is easily solved.  Simply allow the defence to have the right to make an application to dismiss at the first hearing in the Crown Court.  The overwhelming majority of cases will remain unchallenged.  Those that are challenged should suffer no delay because the hearing in the Crown Court should come around much faster without the 4-6 week adjournment prior to the committal hearing that defendants currently experience.

The Times reported today that, "... the move will lead to concerns among some solicitors, who fear that efficiency reforms threaten to compromise the interests of justice."  I suspect that the Times is trying to create some controversy over this change.  In reality, I think most solicitors will realise that this is a win/win situation.  Defendants and victims win because their cases are resolved more quickly.  Solicitors win because they haven't been paid to conduct committal hearings for some time now and so they'll no longer have to do massive amounts of pro bono work on every single case they take (bear in mind a standard Crown Court trial fee for a two day burglary trial is now £386.54, which currently covers at least two hearings in the magistrates court, at least two hearings in the Crown Court, the time spent reading the papers, attending on the defendant, taking any witness statements and preparing the various documents that are required before a trial can take place), so removing the committal hearings will effectively give solicitors a small increase in the potential profit on each case, which I can tell you is non-existent as nobody can make a profit on fees that small for that much work.

In short, this is one good thing that this or the previous government have done to the Criminal Justice System for a very long time.