Friday, 27 January 2012

Stop delaying justice

The MOJ has brought out a new initiative called Stop Delaying Justice... okay so it's technically an initiative of the judiciary in the magistrates court but its an MOJ thing really.

The idea is that rather than allow defendants to take full advice on a case and their representatives to properly scrutinise the evidence, pleas should be taken on the first hearing and the case disposed of at the second hearing.  That means you enter a plea at first appearance then trial is second appearance no exception.

That's all well and good, but the truth is that if you speak to the duty solicitor at Thames Mags he might well have 15 other clients to deal with.  How much scrutiny do you think he's given you case?  Not much is the answer.  We can all say "well Mr X should know if he committed the crime or not".  But that's often not the case.  And, even if it is this country operates an adversarial legal system meaning that the prosecution must prove the defendant's guilt and there is nothing wrong with the defendant asking the prosecution to do just that.

The other problem with Stop Delaying Justice is the CJSSS initiative that was also supposed to speed up the courts by reducing the amount of paperwork... in other words, instead of providing their evidence to the defence and court the prosecution simply give a Janet and John summary of the evidence upon which you are supposed to base all of your tactical decisions that Stop Delaying Justice insists you make on the spot at the first appearance.

How am I supposed to say if PC Smith is required when I've never seen a statement from him?  How do I agree that the arrest was lawful when I have no evidence about the arrest?  How do I agree that the interview transcript is accurate when I have neither transcript nor tape (and even if I did have the tape I have no way of listening to it).  To top it all, how am I supposed to agree evidence and do everything else when I'm appearing as the duty solicitor, have no legal aid and cannot say for sure whether I will be representing the client at trial?

It's also worth remembering that the summary is usually written by the police officer who has dealt with the defendant and because the police officers are human the summaries are frequently one-sided in favour of the prosecution.  In some cases you do get both the summary and selected witness statements, between which it is not uncommon to find significant disagreement.

Since the new year a number of courts have been turned into trial courts meaning that their pre-trial work is shipped to a neighbouring court.  In my area, Stratford is a trial court with all the other work going to Thames.  Last Monday court one at Thames had a list of 50 people and one duty solicitor to cover all comers.  The other courts had very similar lists.  The cells were holding just under 50 people, even though they have barely half that number of cells.

These initiatives are not about reducing delays.  They are about increasing conviction rates in my opinion.

If the MOJ seriously wants to reduce justice delays then they need to stop messing about with courts.  Keep the busy ones open, ensure that they are properly staffed and do the work in their area effectively.  Not sending cases all over the place and having courts in one place and admin in another - e.g. Romford Mags had its admin centre about 8 miles away in Redbridge for a while, which is fine until somebody forgets to send a file over then you have a week long delay!

Tuesday, 24 January 2012

Legal aid myths

I have come across this document from the Justice for All campaign that highlights a few myths about legal aid.

It's interesting and worth a read.

Incidentally, the salary figure for a solicitor is probably accurate in London, where salaries are between about £23-26,000 p.a.  Outside of London I've seen job adverts for newly qualified solicitors starting as low as £19K p.a.

Justice does NOT move quickly

At the start of the year, I dealt with a client who was accused of an affray.  The case was considered too serious for the magistrates so the bench directed that it be committed for trial at the Crown Court.  The defendant was remanded in custody for his own protection (he was considered to be at high risk of self-harm).

For reasons known only to the CPS, they took the view that as the allegation was so serious they would reduce the charge to common assault thus reducing the maximum possible sentence and meaning that the case could now only be heard in the magistrates' court.  A trial date was set for the end of February.

Yesterday the case came before the court.  By now the client had been assessed by two psychiatrists and deemed to have no mental health problems.  Having calmed down a lot in three weeks since I last saw him he no longer appeared to be at risk of self-harm and was hoping to be released to await trial.

The judge spoke to the list office and we were offered a trial this morning - that is to say yesterday morning the court scheduled a trial to take place this morning so 24-hours later.  The prosecution were asked to confirm that they could proceed with 24-hours notice and they said that there would be no problems with such short notice.

This morning one of my colleagues arrived to conduct the trial only to find the CPS now complaining about the short notice.  Despite their assurances yesterday that they could definately go ahead, this morning they complain that 24-hours is insufficient time to get witnesses to travel the half-mile to court for a trial that will take less than 2-hours from start to finish - the key prosecution witness would probably be giving evidence for between 20 - 30 minutes, so would probably have been released by 10.45am at the latest.

Because of this the trial didn't go ahead and the defendant was again remanded into custody; I have to say I think incorrectly.

The sad truth is that once the case is over the defendant will be released immediately regardless of whether he is convicted or acquitted because of the time that has already been served!

Even when we try to move quickly things rarely work out.

Tuesday, 10 January 2012

This is why granting legal aid saves money

Yesterday I represented a man accused of criminal damage.  I collected the papers from the prosecutor but when I went through them I thought I must have been missing something.  He was accused of causing just £40 worth of damage to a piece of plastic on a car, he had no previous convictions and had spent 10-days in prison thus far.

Given that on conviction he was likely to receive a fine in the region of £100 plus costs and £40 compensation for the repair I was pretty surprised that he had been remanded for so long.

When I spoke to him it emerged that he was technically homeless, which in the minds of many magistrates seems to equate with untrustworthy and thus inclined to skip bail.  It also turned out that he hadn't received any legal advice prior to speaking with me, nor had he seen the papers in his case and was thus mostly unaware of the accusation against him.

Yesterday's hearing was the third listing as the Prison Service failed to produced him for the last hearing and a trial date had already been fixed because of the insistence of magistrates that they must "case manage" at the very first hearing regardless of the circumstances facing them. 

Prior to each hearing the prosecutor would have had to read all the papers in the case to prepare.  The Prison Service have had to arrange transportation of the prisoner as well as housing and feeding him for 10-days (according to one newspaper that's a cost of £770 excluding transportation).  During each hearing (including the one he didn't show up for) there would have been a list caller, legal adviser and prosecutor in court.  Probation officers had also become involved trying to find a bail hostel to get this man out of prison.  Finally, as English was not this man's first language and his English was not up to understanding the court proceedings there was an interpreter present at all three hearings.

After the hearings the court and CPS administrators would have had to spend time resulting the case and updating the computer records.  By the time you factor in the cost of court staff, lighting, heating etc I feel confident in saying that this case has cost the tax payer well over £2,000 and quite possibly more than £3,000.

Yesterday I show up.  I had a short chat with the client.  I explained the evidence against him and told him where it was supposed to have happened as well as listening to what he had to say.  He told me he was drunk and doesn't remember much at all.  But when faced with the (overwhelming) evidence he accepted that he probably had committed the offence and asked to be allowed to change his plea to guilty.

He was sentenced to a £50 fine, deemed served by the time he spent in prison and was told to pay the £40 compensation within 2-weeks.

I don't really expect that I'll get paid for this case.  But, if the LSC do grant legal aid then my fee will be about £240 (legal aid rates were recently reduced and I'm not sure what the current fee is off the top of my head).  This is a standard fee set by the Government.  For the sake of that £240 fee at the first hearing we could have saved the costs of locking him up, transporting him and two court hearings.  If he'd been introduced to the duty solicitor at the first hearing then there wouldn't have even been the £240 fee!  In that case the case would have probably cost around £500 - £750 including my fee!

Once we have more unrepresented defendants who either cannot or will not pay privately then you will quickly find that the costs of the court system go up overall because nobody is being told to hold their hands up when they clearly have no hope of winning!  You'll also find that if you or a loved one are accused of a crime or are a victim of a crime and have to give evidence then you'll be waiting for justice for a very very long time as the courts creak over closer to total seizure.