Saturday, 17 March 2012

Sobriety Orders

The BBC reports this morning that the Government is planning to pilot Sobriety Orders as a method of preventing people from committing alcohol fuelled crime.  The thinking being that if you commit a crime that is linked to alcohol (usually meaning you were drunk at the time, but not always) then somebody will test you regularly to make sure that you are not drinking.

As with all new initiatives, it really isn't that new.  Sure it has the unique selling point of the breath tests and ankle bracelets for reporters to get their teeth into, but will the new orders actually be any different from an ASBO?  Now, ASBOs are widely used in England and Wales to criminalise behaviour that wouldn't otherwise be criminal.  Prosecutors for years have been applying for ASBOs that require people to cease being drunk in public.  Judges are loath to grant such ASBOs for the very simple reason that often the people against whom they are targeted are alcoholics and while the courts would very much like them to stop drinking the reality is that they can't stop drinking and what they need is two things: 1. help to stop hitting the bottle; and 2. a desire to give up on the booze.  The courts can provide the former but not the latter.  I know some probation officers read this blog and maybe they will correct me, but my experience is that orders directing alcoholics or drug addicts to stop drinking/chasing the dragon never work unless the recipient of the order wants to give up.

I have no doubt that the Government intend these orders to be used against people who go out on a Friday night, get drunk and start a fight.  Maybe they will be used against them.  Will they work on them?  I have no idea but I doubt it.  The Prison Service runs a course called Enhanced Thinking Skills, which aims to help offenders face the situations that led them to commit crime and learn new non-criminal ways of handling the situation... I guess it's really a lesson in how to behaviour like a normal member of society.  I suspect that a course like that in the community would be more beneficial than a booze monitoring order that lasts a couple of months; but of course those courses would be very expensive while ankle monitors are relatively cheap.

I also note from the BBC report that there is a suggestion that the police will dole out these orders as part of the conditional cautions they already hand out to offenders.  First, I have no idea how many offenders receive conditional cautions, but I can tell you that I go through every single case that my firm deals with and I cannot recall ever coming across a conditional caution.  Secondly, if anybody is going to issue what Prime Minister David Cameron describes as an order designed to restrict the offenders freedom then personally I think it should be a court.  I have no doubt that some people who read this think I'm just saying that because they imagine I earn shed loads of cash by having cases delayed and delayed in court (which no matter how many times I explain how solicitors are paid never seems to go away).  But that isn't the reason.  When a court passes a sentence 9 times out of 10 it will have the benefit of hearing from the prosecution, defence and a probation officer who will have looked at the offence, spoken with the offender and produced a report with recommendations as to how future offending can be prevented.  Whereas the police will have had the defendant in front of them with a simple decision to make: accept the caution or go to court and get a criminal record.

On a final point about the use of conditional cautions in this way: it does occur to me that if a crime is so bad as to require punishment by loss of some part of your liberty to do what would otherwise be lawful then isn't it also a crime that the offender deserves to receive a criminal record for committing?

Tuesday, 6 March 2012

Magistrates make me mad

If you find yourself accused of a criminal offence you may be asked to chose whether you would like to be tried in the magistrates' court or the Crown Court.  Frequently, your solicitor will advise you to select trial by jury.  There are a few reasons for this but the most common that I've heard is that solicitors consider jury trials to be fairer for a variety of reasons.  Now, magistrates, particularly lay magistrates (that is non-lawyer magistrates) hate this advice because they consider themselves to be jolly decent chaps who are as fair as the next man.

Today I came across a magistrate who reminded me why solicitors so often think of trial by jury as fairer than trial by magistrate.

I was appearing in a court for a defendant who had been convicted at trial of burglary and was being sentenced by a lay bench.  The allegation is simple that the defendant went into a shop that had already been broken into and intended to steal - not that a theft actually took place because no theft occurred, bizarrely.

The chairwoman used the sentencing hearing to make some breathtakingly stupid comments that highlighted her lack of knowledge about practically every aspect of her job as a magistrate sitting in a criminal court.

First, she told the defendant, "you went into the shop and came back out... you should have been told you were guilty of burglary".  The defendant was then asked directly why they hadn't pleaded guilty immediately.  The answer was because, "I didn't steal anything or intend to steal anything".  The chairwoman told the defendant that just going into the shop was sufficient to prove guilt to a burglary charge.  The Theft Act 1968 says this:
"(1) A person is guilty of burglary if—
        (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
        (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm F1... therein, and of doing unlawful damage to the building or anything therein."
As you can see, far more is required that just going into a building as a trespasser... the prosecution must prove some level of intention at the very least.  So, the chair of the bench does not understand what she must decide happened if she is to convict somebody.  At least today she was only sentencing.

The chair of this panel of magistrates clearly does not understand what must be decided in a fairly common and uncomplicated offence.  Yet, she sits in judgment on people accused of just these offences.

The chairwoman also chose to inform my client that had a guilty plea been entered at the earliest opportunity then the defendant would have avoided a criminal record.  This is simply wrong.  To me this is such a fundamental error that I honest never even considered that somebody would make such a mistake.  It's like being a car driver and thinking that the red light means go.

I want to make this crystal clear.  If you plead guilty then you have a criminal conviction and thus a criminal record just the same as if you are convicted after trial.  Again, this magistrate has completely misunderstood one of the most basic principles of the court process.  This is not a minor error.  If she were to tell this to a unrepresented defendant (of whom there are many thanks to the recent cuts in legal aid) at the time he or she enter his plea then there is a serious risk that a defendant would plead guilty thinking they would avoid a conviction!  Given that the court legal adviser allowed the magistrate to carry on without correcting her at any point only serves to increase my concern on this matter.

Finally, she criticised me for not forcing the defendant to plead guilty earlier in the case.  Again, the chair was making a fundamental error in her understanding of the role of those involved in the criminal justice system.  Marcus Tullius Cicero the Roman Consul and lawyer may have promised tribunals that his client would provide 20-years of army service without consulting his client but in our justice system the lawyer is expected to take instructions from the client and act according to those instructions.  While strong advice to plead guilty is given regularly in appropriate circumstances, it is not my job (or anybody elses) to twist the arm of defendants into entering guilty pleas when they protest their innocence.  I found the criticism particularly irksome given that the magistrate has no idea what advice I gave or what instructions I received and should have known that I could not reveal my advice to the court in any event.

This particular magistrate has managed to become a chair - that is to say she is a senior magistrate who leads the debate among the panel and who speaks on behalf of the bench - despite apparently failing to understand some of the most basic principles of her job.

Here's a good tip for you if you ever find yourself facing a criminal allegation.  Get a solicitor and tell him you want to discuss the venue for your trial.  A decent solicitor will know the local benches both in the magistrates and Crown Courts.  Many courts have excellent magistrates some, clearly, have terrible benches.  A solicitor should know his local benches and will be able to give you good advice on where you should have your trial.

Friday, 2 March 2012

Profit margins and committal fees

I'm making a new years resolution to blog more... so it's a bit late in the year for new year resolutions?  Well, sue me.  Er... hang on I know a few lawyers read this so lets not do any suing just yet.

Last year the Legal Services Commission did NOT abolish committal fees - these were paid to solicitors for work done in a magistrates court on cases that were later committed for trial to the Crown Court.  I say they didn't abolish these fees because, I did read a slightly pedantic letter from some arse at the LSC that pointed out that the fee still existed but had simply been set to £0.

It was widely predicted at the time that this would lead to hordes of unrepresented defendants at the magistrates court.  Personally, I saw this coming a long time back and took steps to ensure that my clients would always be represented through deals with Chambers etc.  I do not know personally whether the changes have led to the levels of unrepresented defendants that were predicted; but what I do know is that since this change came in every trip to court takes three times as long.  I popped to Thames Mags for a quick first appearance last week.  I told the list caller I was ready at about 9.55am only to be informed that there were 10 unrep'd defendants ahead of me in the queue!  So, maybe there is some truth in the claim that abolishing committal fees (sorry reducing the payment to £0) will cause delays.  Certainly, the Law Society things so and they have taken the LSC to court to argue it out before a judge.

This is the latest in a very long line of legal aid cuts.

I spoke to a former colleague recently who confided in me that he had always assured clients that they would receive the same high quality service whether they paid privately or took legal aid.  I'd always agreed with that point.  But, he is now at the point where he says his firm simply cannot provide the same level of service to their legally aided clients as they can to their private paying clients.  I hadn't spent a huge amount of time thinking about it, but he's right.  It is becoming increasingly difficult for firms to manage an ever decreasing income from legal aid work, which means that quality will fall.  Ultimately, this is bad for victims as much as it is for defendants.  Let me put this very simply.  If your loved one is killed do you want somebody in prison or do you want the killer in prison?  A strong defence means that you can be certain that the right person is behind bars.  A poor defence may well find you facing the prospect in 10+ years time of the person who was convicted being revealed to be innocent and you with the knowledge that the real killer will now never be found!  It's happened plenty of times before.  On a more day to day basis, if you are the victim of a robbery and have to give evidence do you really want the trial delayed time and again because the defence lack the quality staff necessary to prepare the defence case meaning that it is necessary to seek adjournments over and over again?

How close are we to complete collapse of the criminal defence service as we know it?  The link I posted earlier contains a mention of the Otterburn report that shows that on average legal aid firms across all disciplines will see a fall in profit from 7% to a loss of 26% as a result of recent legal aid cuts.  In criminal legal aid the average profit margin after the removal of committal fees will be just 5%.

I double-dare you to go on Dragon's Den and pitch a business idea where you'll only achieve a 5% profit.