Monday, 23 December 2013

Denis MacShane imprisoned for fraud

Denis MacShane behind bars
MacShane behind bars
Former MP and Government Minister, Denis MacShane has today been sentenced to six-months imprisonment for fraudulently claiming £13,000 in MPs expenses to which he was not entitled.

This sort of thing really gets on my nerves.

Mr MacShane will no doubt have been sentenced in accordance with the guidance for fraud committed by professionals.  The leading case is R. v Chaytor [2011] 2 Cr.App.R.(S.) 114 who you may not be surprised to hear was an MP who made up expense claims.  He received an 18-month prison sentence for stealing £50,000 from the taxpayer following a guilty plea.

These cases annoy me when we compare them to the sentences handed out to benefit fraudsters.  The leading case on benefit fraud is R. v Graham , R. v Whatley [2005] 1 Cr.App.R.(S.) 115 which considered two unconnected offenders together.  The facts are not terribly important save that Graham's fraud was false from the start where as Whatley initially made a genuine claim that later became false due to a change in circumstances.  The appeal court considered a whole host of authorities before reaching the conclusion that where a person fraudulently over claims less than £20,000 in benefits they should face between nine and twelve-months imprisonment.  Admittedly the Magistrates' Court sentenceing guidelines are far less strict, although they conflate a number of offences and do not seem to sit well with Graham and Whatley.

Benefit frauds are typically very small amounts of money over-claimed for very long periods of time to the point where the total amount paid out can be very high.  Most benefit fraudsters I've dealt with make a genuine application and are entitled to the benefit at the start but then their circumstances change and they become entitled to a smaller amount of benefit (sometime they are no longer entitled at all but mostly they remain entitled to something).  I've yet to meet a benefit fraudster living a luxurious life-style off the back of their fraud.  The benefit frauds involving multiple false claims using fake identities are, in my experience, relatively rare.

The MPs who made fraudulent claims typically seem to have obtained large amounts of cash in short periods of time in situations where a great deal of trust has been placed in the individual.  In MacShane's case the Independent newspaper reports that he (or somebody working for him) faked the signature of the manager of the European Policy Institute multiple times on receipts.  The implication of this is that the receipts themselves must be forgeries (in so far as they are not genuine receipts) else why would he have required a fake signature?

The obtaining of and/or faking of receipts and signatures indicates a high degree of planning went into this offence.  If Mr MacShane did not forge the signatures himself then the involvement of others raises the level of planning.  Further, Mr MacShane was in positions of responsibility and trust as an MP, a Minister and head of the European Policy Institute.  By committing these offences he breached the trust of his electorate, the Prime Minister and those at the EPI.

For those reasons, I consider the offences committed by MPs to be far more serious than those committed by the overwhelming majority of benefit fraudsters and it is why I think that the sentence of six-months imprisonment is very lenient.

Friday, 22 November 2013

Managing expectations

I remember reading about a once famous television soap-opera actor who played an unpleasant character in his show.  He complained that people couldn’t disassociate the actor from his character and little old ladies would routinely harangue him for his character’s antics.

In a modified form I suffer the same problem with people who cannot disassociate the television portrayal of the courts, lawyers and legal process from the reality.  This belief that the TV accurately portrays the Criminal Justice System gives people completely unrealistic expectations of what can reasonably be done for them.

One chap telephoned me recently sounding like he had just stepped out of da hood.  After providing no more information than that he had been charged with drink driving he demanded to know “how we gonna beat this thing?”  I assume he’s seen lawyers on TV fabricating defences for clients, although there are some lawyers in this country who do just that!

Another client appeared to have mistaken me for a member of the Mafia.  She requested (in loud shouty terms) that I ask the court to move the date of her court hearing as she was going abroad and didn’t want to attend court on the date she had been bailed to attend.  The court, outrageously in her opinion, decided to ask the prosecution if they objected to the move.  The CPS, in typical efficient public service mode, simply ignored the court’s question and didn’t respond.  As this took place the day before the hearing, the court refused to move the hearing date leaving me answering for why I hadn’t gone to a “friendly judge” who would do me a favour or found a QC who could see the judge at his club – I’m not sure what century she thinks lawyers live in, although since we still dress like we’re in the 18th century maybe that is the answer.  Earlier she had suggested going to the court herself to put personal pressure on the judge to get what she wanted.   I explained, as politely as possible, that we live in real-life UK, not an American TV cop show.  I’m not sure she was impressed by that but by that time I was starting to cease caring.

I also remember one lady who came into my office many years ago demanding to know in which prison her son was being held.  The facts that a) I do not work for the Prison Service; and b) did not represent her son meant literally nothing to this particular woman who seemed to think I had some hotline or psychic link to the Prison Service.

Don’t get me wrong, not all clients – not even most really - have unreasonable expectations.  Like most fans of soap-operas the majority of clients can tell the difference between reality and fiction, but the ones who can’t are certainly memorable.

That’s not to say that solicitors, barristers – in fact anybody who provides a service to the public – shouldn’t keep re-evaluating what is reasonable and what isn’t.  I always try to meet my clients’ expectations and there have been times when I’ve been asked to do something I’ve initially thought daft but on reflection is something that is quite a good idea.  Still the off-the-wall ones still make me laugh (and want to pull my hair out).

Friday, 25 October 2013

School meals

I went to visit some primary schools in Oxfordshire earlier this week.  My primary school was very different to those I visited this week.  My school was an old Victoria building where the youngest children joined the school on the ground floor and the older you got the higher your progressed up the building.  Each floor had separate classrooms and its own large assembly hall.  In contrast the schools in Oxfordshire were all largely open plan with two or even three classes in one (large) room.  Also noticeable was the small size of the school halls and the number of them.  As I say, my primary school had four assembly halls, three of which were large enough to fit the whole school for the dreaded whole-school assembly.  This was a useful feature as the first floor assembly hall was used daily by the whole school as the lunch hall.

Noticing that the schools had just one small assembly hall each we posed the question, "where do the children luncheon?" (Obviously, I didn't actually phrase it like that but I'm trying to sound posh).  The answer shocked me.  It seems that the children take their lunch at their desks, which as an adult I am always being told is a bad thing in the work place.  It also raised the question as to how the kids get their food before it goes cold.  Now that turned out to be less of a problem because it turns out schools no longer feed children proper food.

The children all get sandwiches for lunch and the old school kitchens have been converted into classrooms and offices.  This is a problem for a couple of reasons.  First, kids who eat a healthy meal at school are more likely to do well and be better behaved in class and, secondly, there are some kids who rely on schools for their only healthy meal of the day - an extreme example is Daniel Polka who was so tragically let down by adults all around him.

Nick Clegg has (after 3-years as DPM) decided to do something about it.  From next year Reception and KS1 kids will get a proper cooked meal.  However, since none of the schools have kitchens the only way this can be done realistically is to buy the food in from an outside contractor and, let's face it, the quality is likely to be poor.

At the same time, one of the head teachers I met with had an appointment with another solicitor after me.  The other solicitor was interested in selling the services of his firm to the school.  I'm reliably informed that the retainer for this firm will be £25,000 per year followed by hourly rates.  I told the head that if he doesn't know how to run a school without a lawyer watching over him he should quit and if he does know how to run a school he should spend his money on something more useful!  I'm 100% certain that if he requires legal advice in the future the firm in question will give it at their hourly rate without the expensive retainer and the money saved can be put into things that benefit the children.

There's no great point to this post, merely a small effort to raise awareness that the problems with school meals go far beyond the turkey twizzler saga of a few years ago.

I hope this makes sense and that I can be forgiven for not proof reading it as it's now 1am and it's time for me to meander up the wooden path to Bedfordshire.  Good night.

Monday, 21 October 2013

Drink driving sentencing

I spoke to a chap today who has been accused of a drink driving offence.  He denies it, but that's not really important because this post isn't about him or his case.

Like many people I meet dealing with drink driving offences at The London Drink Driving Solicitor this chap faces losing his driving licence and with it his job and so not being able to afford his mortgage.  Understandably, he's very worried about feeding his family if he loses his job and cannot pay the bills.

Now, many people take the attitude that he has brought the punishment on himself and I can understand why people would take this view.  But, is taking people out of work and making them and their families reliant on the state for their accommodation and food really the best way for us to deal with this offence?

It's just a suggestion, but why not change the drink driving law so that it no longer carries an obligatory driving ban but instead has a sentencing guideline that starts with everybody being banned from driving, but allows the court to chose not to disqualify where the magistrates believes that the likelihood of further offences is low and they consider that the offender could be better punished with another sentence, such as unpaid work.  The court could also impose a probationary period on the offender during which any driving offence (or any one of a list of offences that the Secretary of State deems serious enough) would result in an immediate driving ban.

The chap today was hopeful that he could undertake 800-hours of unpaid work in the community and pay a significant fine to avoid the driving ban and why not if there's little chance of further offences?  He can't, of course, because a) the law requires that he is banned if convicted; and b) the maximum unpaid work hours is currently 300.

There are clearly some people who are a menace to others and who should not be allowed near a car; however, many of the people I meet are middle-aged, working and have never been in trouble before.  Many of these people can safely be allowed to continue driving.

Thursday, 26 September 2013

Customs officers

There maybe a border control or customs officer reading this blog, who knows.  I have to ask, why are UK borders and customs officers always so bloody miserable?

I went to France last weekend - FRANCE reputed to be the rudest country in Europe by some - and yet the customs officer bade my family and I a happy "bon jour" and cheerfully wished us a pleasant stay in his country.  I've been to France a few times and mostly they are always reasonably cheerful.

I was in Germany a year or so back and despite my stupidly buying a novel to take with a big swastika on the cover the border man was pleasant, albeit a little surprised.

I've visited Slovenia, Austria, Slovakia, Latvia, Estonia, Spain and Poland where everybody we met was pleasant.

In the USA even the stern border control officer managed a smile when he realised I wasn't a terrorist merely English.

Yet no matter how many times I go away I always have to come back and every time I do I'm met with a difficult unpleasant and occasionally rude customs officer.  On one occasion while travelling with friends I met the rudest official I've ever come across.  He actually shouted threats at my friend as my friend walked away and offered to fight him after work!!  My friend is the least offensive man you could ever meet - and at the time was a senior executive at the airport!

Honestly, the most pleasant experience I've ever had at passport control in the UK was at Heathrow when I found a machine that could check my passport for me.  No messing about demanding I remove my passport from its wallet (I only ever have the front cover slipped into the wallet so it can be read by the machine and every country I've ever been to manages to read it without a surly demand that the passport be removed from the wallet). The machine didn't ask any stupid questions about where I'd been, what I'd been doing, who I was travelling with, etc.  It just checked my passport, had a look at me and showed me a little green light to tell me to carry on.

When a machine is the most friendly border control officer in the UK something is clearly wrong.

Thursday, 19 September 2013

Drunk tanks

Tank driving on US freeway
Drunk tank

When I heard on the radio yesterday that Adrian Lee (who he? - he a member of the Association of Chief Police Officers) had called for drunk tanks to be established in rowdy city centres I initially wondered where they would find all these tanks for drunks to drive and whether that would be such a good idea anyway.

In the event, I realised that Mr Lee had only a slightly worse idea.

What this chap actually wants is slightly unclear if I'm honest.  Sounds simple at first: cells are not the place for drunks so we'll set up some cells to put drunks in and then charge them for the stay.  But when you think for a minute what he's actually proposing is slightly harder to implement.

Mr Lee said, "I do not see why the police service or the health service should pick up the duty of care for someone who has chosen to go out and get so drunk that they cannot look after themselves."  My answer to that is, "well because that is one of the reasons they both exist" but we'll go along with Mr Lee's plan for the moment anyway.

Let's just start by thinking about that statement.  People get drunk.  We know that.  Bad things happen when you are drunk.  A lot of people on Twitter don't like to admit that women are more vulnerable to attack when drunk but we all are, men and women.  Is Mr Lee seriously suggesting that if a woman is raped while too drunk to look after herself the police should ignore her?  What if a man gets drunk and stumbles into the road and is run over.  Should the NHS refuse to treat him because he was drunk?  Even on the face of it his statement is nonsense.

Now, according to that statement police officers shouldn't be getting involved with drunks and assuming a duty of care.  Well, once you nick 'em you got that duty of care so presumably Mr Lee's well thought out plan involves somebody else doing the nicking.  This would require civilian, i.e. non-police officers who are employed by such trustworthy companies as Serco & G4S to be given powers to arrest and imprison people, so a bit of primary legislation required there... should take a couple of years that one.  

Since we can't use police cells now, we'll have to build some local holding facilities, we'll call them "Jails".  They'll need staff who will need to be trained up to care for the prisoners - incidentally, a job which the private sector already does quite badly, e.g. Thameside prison in east London.

Essentially what Mr Lee appears to be saying is that he wants civilians to be able to single out a member of the public, tie them up, drag them off somewhere and hold them prisoner for a night.  Can't imagine what the police would say if I decided to head out and do that to some passing drunk woman tonight.. oh wait yes I can think what they'd say.

I'm not aware of any legislation that would allow any old Tom, Dick of Harry to hold un-convicted members of the public prisoner without falling foul of these tiresome laws we have here, such as false imprisonment and kidnapping.  So, we will need more legislation to allow the jails to operate.  I would hope that the British public would be totally against the introduction of a new, barely trained mob of non-police being given powers to nap people off the street almost at will.  I hope the public would be against it but I won't hold my breath.

Now, how about charging the prisoners for their stay and what happens if they refuse to pay up or can't pay up?  You have three options: 1. don't charge people; 2. don't release them until they pay; or 3. give these non-police officers powers similar to those held by judges to conduct means enquiries to determine ability to pay.

If we don't charge then these jails will be horribly expensive to run.  If you don't release until the bill is paid then you could see people imprisoned for ever if they simply can't pay and the fee increases by £400 per night.  If you give this barely trained (and they will  be barely trained at best) bunch the powers currently only held by a court then fuck the lot of you, I'm moving abroad.

Of course, the companies could release people after their night's stay and sue them for the cost... except that there's no basis in law to claim such a fee.  Guess what.. this means more primary legislation.

I don't doubt that dealing with drunk people is a pain in the arse for police officers and those in the NHS, but it is part of the job.  If you can't accept that then get a job somewhere you won't meet the drunks.  You could, for example, become an MP and introduce some sort of considered, reasoned change to society that cuts down on binge drinking and drunken violence.  Admittedly, drunk tanks are easier to implement than societal changes but they are not nearly as effective.

It's just a thought, but how about state funded burger and kebab vans?  Lots of trouble seems to kick off when people are leaving pubs, bars and clubs.  Give them some hot food to concentrate their minds and they'll probably calm down... if they don't they'll be so busy wiping chilli sauce from their clothes that they still won't be a problem.

Thursday, 12 September 2013

Let's make Parliament more like us

I have occasionally ranted about MP’s in this blog and today will be no different.

Houses of Parliament
Houses of Parliament - where the lizards live
A part of me thinks that anybody who actively wishes to enter politics should be excluded from entering politics, although I also appreciate that this is probably unlikely to happen.

One of my big problems with politics is the lack of real-world experience enjoyed by many MP’s these days whose career seems to involve a politics degree, followed by a few years as a researcher for an MP or working at party HQ followed by standing for election themselves.  These people have absolutely no idea how their policies work in the real, everyday world that the rest of us inhabit.

I’m sure that most of them aren’t the evil world-domination lizard types dressed in human skin that they often appear to be… although I am sure some are actual lizards in human skin.  I’m sure some go  into politics because they want to better the world and help people.  Most seem to regard the political fight portrayed in shows like The Thick of It as their job, rather than their job being to make the lives of ordinary people better.

At the moment Ed Milliband is embroiled in a tedious battle with his own party over funding of the Labour party.  I don’t pretend to understand all the ins and outs of it and I care even less.  Many people couldn’t give a monkey’s whatsit about this battle between Ed and the unions.  Why is he fighting it?  Why doesn’t he tell Dave to sod off and mind his own business about how the Labour party is funded and produce some actual policies to fight the Tory’s with?  I can only imagine that he and the rest of the party leadership are so caught up in the act of politics that they have forgotten the point of politics.

How can we put the idea of career politicians to sleep and bring back representation by people with actual experience of living in the world?  I have a couple of ideas.

First, MPs would not be allowed to serve more than two-consecutive terms as MPs unless they reach cabinet level and were in cabinet at the end of their second-term.  Cabinet members would be allowed a maximum of three consecutive terms on the basis that they may have developed some expertise.  There would be a mandatory five-year break after any MP left Parliament before they could stand for election again.

Secondly, I would  require the party machines to be run more like the civil service with career politicos working to provide a support system for MPs rather than being MPs themselves.  Anybody employed by political parties (and subsidiaries of parties) would be banned from standing for Parliament for five-years from the date they left that employment (and of course while employed).

I think that this would  force political parties to select candidates from people outside the Westminster bubble and thus increase the skill set of those sitting in Parliament.

Incidentally, I’d also scrap the reforms of the House of Lords and keep the upper chamber as a reviewing body filled with appointees.  Again, nobody employed by a political party or a former MP would be eligible to sit in the Lords for five-years after leaving their employment/the Commons.  I don’t see how electing even more politicians is going to increase accountability when a) the Lords isn’t really that powerful; and b) only a tiny number of votes actually make a difference in General Elections anyway – if you don’t live in a marginal constituency your vote counts for nothing.

Monday, 9 September 2013

It's just a little miscarriage of justice so who really cares?

Miscarriage of Justice

Miscarriages of justice aren’t always big news involving somebody spending years in prison for a crime they didn’t commit. Often they are the minor cases that nobody but the people involved care about.

I'll let you into a secret... there's almost certainly a good few miscarriages of justice every single day in the English courts.  They are usually for relatively "minor" offences and happen to people who either don't care because of they have drink, drug or psychiatric problems.  The other big group are those who cannot afford to fight - the justice lacuna.

Most solicitors will have come across the defendant who pleads guilty while maintaining their innocence.  The reasons for pleading guilty are as diverse as the people who make “false” guilty pleas.  I’ve seen everyone from drug-addicts clucking so badly that all they can think about is getting out of the cells to get another hit and very highly educated professionals pleading guilty simply because they are scared of the court process.  I also spent many years dealing with a man for whom making false confessions was practically a hobby – he confessed to arson, well known murders, acts of terrorism and many other things.  Worryingly he is still in prison having served 29-years of a life sentence (that was imposed with a 4-year tariff) for arson.  He confessed to police and entered a guilty plea in the early 1980s.

I am currently instructed in a case that comes to trial later this week.  The defendant is accused of a drink driving offence, in this case failing to provide a specimen of breath for analysis.  She insists that she followed the instructions and did her best to provide the breath specimen.  I’ve watched the video a number of times and she certainly appears to be co-operating properly, albeit I’m neither a medical nor intoximeter expert.

Because I am not an expert, I advised the client to obtain evidence from expert as to whether there is a medical reason for her failure to provide or a fault with the intoximeter or by the police officers. 

Sadly this individual falls into the ever increasing bracket of people – often middle-income families and young-professionals – who do not qualify for legal aid (which will also pay for the expert reports, if you can find an expert for the very low rates paid by the Legal Aid Agency) but who cannot afford to pay the relatively high costs charged by experts.  She is only represented at all because I was happy to trust her to pay me by instalment.

There is a rule that if an expert witness is relied upon at trial then the witness becomes the court’s witnesses for the purposes of costs and thus the defendant is able to be reimbursed for the costs of instructing the expert.  This still requires the expert’s full fees to be paid up-front, which is where many people have a problem.

This client therefore is about to go to trial lacking vital evidence, which she simply has no way of obtaining.

To give you an idea of this lady’s position, imagine being told that you could take three luxury holidays and all for free… except you have to book and pay for the holidays then claim back the costs later.  Best of all it’s not a scam; you’re pretty much guaranteed your money back.  You’d be champing at the bit to take those free holidays wouldn’t you?  But, if you don’t have the money to put down at the start then it doesn’t matter how badly you want or need the holiday you’re not going to get it.

Is this person innocent or guilty of a crime?  I don’t know.  I will make sure that she receives the strongest possible defence at the trial but ultimately, she is going to be hamstrung by the lack of evidence supporting her case.  There is nothing any solicitor can do about that.

Friday, 9 August 2013

Joint Enterprise

The concept of joint enterprise has been something of a controversy over the past few years with people arguing that convicted murders should not stand convicted because they were not at the murder scene etc.

I was recently followed on Twitter by the Justice for Wesley campaign, which argues that Wesley Porter was wrongly convicted for his part in a gangland murder.  According to the Liverpool Echo newspaper, Porter was alleged by the prosecution to have supplied the murder weapon to the killer and was thus convicted under the joint enterprise law.

Jonathan Herring in his Criminal Law textbook succinctly defines joint enterprise as arising “where two or more people together embark on the commission of a criminal offence.  The two parties may expressly agree to commit a particular crime, or this may be an unspoken agreement.”  There is no requirement for all of the parties to a joint enterprise to know one another but it is important that they are working toward a common cause.

I explain joint enterprise to clients by likening it to BP or Shell.  Let’s take three employees of those companies, the person working on the petrol forecourt, the person drilling for oil and the managing director.  They won’t necessarily know each other but they are working together in a common cause and are linked together by their work to further that common cause.  In the same way, parties to a criminal venture may or may not know each other.

There can be an overlap between joint enterprise, conspiracy and accessories to offences.  For example, if John supplies Mark with a gun knowing that Mark will use the gun to kill Peter then John could be guilty of murder by joint enterprise if they are both working together to further the cause of killing Peter.  Equally, if John enters into an agreement to help Mark then they could both be charged with conspiracy to commit murder.  Finally, John could be guilty of aiding, abetting, counselling or procuring an offence of murder.

I will just take a moment to quickly explain two terms.  First, a principal offender is the person who commits a crime, e.g. the man who pulls the trigger of a gun to kill somebody else.  In joint enterprise cases the concept of the principal offender is stretched somewhat to include those around the principal who are involved but not holding the gun.  Secondly, an accessory is somebody who is a secondary party to the principal’s offence.  Typically, this is somebody who aids, abets, counsels or procures a crime.  We’ll discuss this more later on.

What is the difference between a conspiracy and joint enterprise?  The truth is that in many cases there will be a significant overlap and a prosecution could be framed as conspiracy or joint enterprise.  They key difference is that joint enterprise requires a crime to have taken place.  Conspiracy is the crime and is committed once the agreement to commit a crime is reached even if that plan is never implemented and the “actual” crime, e.g. a burglary, never takes place.

So, if John and Mark agree to kill Peter they are guilty of conspiracy to murder at the point they reach the agreement, even if they never go on to actually kill Peter.  They cannot be guilty under the joint enterprise law as no murder has taken place.

Is there a difference between joint enterprise and aiding, abetting, counselling or procuring an offence?  According to Herring, some commentators say that joint enterprise is just a fancy form of aiding and abetting an offence.  Personally, I think that there is a difference because the mens rea (the mental element of a crime) must be different for aiding and abetting than for the commission of the offence itself.  The individual words “aiding”, “abetting”, “counselling” and “procuring” are not particularly well defined by the courts because since the abolition of the need to distinguish between felonies and misdemeanours aiding and abetting has always been charged using all four words.  Nonetheless,  I will do my best to define each word for you:

1.            Aiding – occurs when an accessory to a crime offers help or assistance to the principal offender, e.g. by supplying a gun for use in a crime.
2.            Abetting – I will quote Herring’s book here, as it made me laugh.  “To be honest no one knows what abetting means”.  In NCB v Gamble [1959] 1 QB 11 Devlin, LJ. says that abetting is encouragement given at the time of the offence as opposed to procurement, which is encouragement given before the commission of the offence.  Personally, I think it’s just an old-fashioned word that means nothing except that some long dead lawyer insisted on the belt and braces approach to drafting and others trying to look clever took up the word rather than admitting they had no idea what it meant.
3.            Counselling – involves directing somebody to commit an offence.  The accessory may indicate that commission of a particular offence is desirable or may go further to incite or instigate the crime, e.g. King Henry’s words "Will no one rid me of this turbulent priest?" were interpreted by his followers as meaning he wanted Thomas Becket killed.  If that was his meaning then  perhaps that would be counselling… if he wasn’t King that is.
4.            Procuring – will occur when the principal acts as a result of the accessories actions, e.g. Peter hears of a conspiracy between Mark and John to kill him and so convinces Trevor, who has a grudge against Mark and John, to off them before they can top Peter.

So, we can see that aiding and abetting involves helping the principal while joint enterprise goes well beyond that and enters the territory of being so involved in the offence that the defendant becomes a principal offender himself.

People don’t like the concept of joint enterprise because it makes them guilty of an offence as a principal offender even where they have not been present for the commission of the actual offence.  The argument really comes down to “well if I wasn’t there how can I have murdered him?”  With respect, this is a nonsense.  Let’s imagine a sophisticated cash in transit robbery.  Charlie and his gang plan to steal gold bullion from the middle of a busy city by using the talents of Professor Peach to reprogram the city’s traffic control system to leave them an easy exit route, in three Mini’s driven by Dominic and pals, while causing chaos throughout the rest of the city.

Leaving aside the possibility of a conviction for a conspiracy offence for the moment, what would happen if there was no joint enterprise?  Each member of the gang knows what the purpose of the group is.  Each has his particular task assigned to him.  It would be a mockery to say that Professor Peach is not guilty of his part in the robbery because he was not there even though without his computer prowess the robbery could never have occurred.  It would be silly to say that Dominic and pals are not guilty because they were not at the scene of the robbery and merely loaded the gold into their Minis and drove it out of the city.

On the same basis, it is a nonsense to say that a group of criminal associates who agree to murder a rival and each take their allocated roles are not guilty of murder simply because only one of them pulls the trigger.

With respect to the Justice for Wesley campaign I do not think their complaint is with joint enterprise so much as with the jury’s acceptance of the prosecution evidence over the defence case.  Saying that somebody should not be guilty simply because of a perceived fault with joint enterprise seems, to my mind, to accept involvement in the offence and to be an argument for conviction for an offence other than murder.  I do not think this is what Justice for Wesley is actually saying.  Having read their website it looks more to me like they are arguing that he is completely uninvolved and that the evidence at trial was too weak and should never have been left to the jury at all.  All I know about the case is what is reported in the press and on the campaign’s own website.  All I can say is that I find it difficult to believe that what is reported is the extent of the prosecution evidence.  If it is I cannot fathom how it passed the evidential test, let alone got past the half-time point in the trial or led the jury to a conviction.  But that has nothing at all to do with joint enterprise!

Sunday, 4 August 2013

Going to the police station

I've spent the last 24-hours at several police stations dealing with several clients.  All but one of these attendances was conducted civilly by me, police and detainee alike.  The only exception was this morning at West Drayton Police Station.

I was a little suspicious when a uniformed constable giving disclosure consistently claimed not to know the answers to my (fairly basic) questions, all of which could be expected to be answered in the arresting officers' note - in fact the arresting officers were the only witnesses in this case.  A lack of knowledge usually means either that a PC hasn't prepared properly or is trying to hide information from you.  A lack of preparation is rare since it is hard to question somebody about an offence if you don't know the basic facts of that allegation.  Experienced officers who want to hide information will simply refuse to disclose key-facts.  This is done in a planned way to withhold facts that can be used to test your client's account.  Inexperienced officers seem to pretend a lack of knowledge on fairly basic points with no obvious plan behind it.

Another good indicator that interviewing officers are trying to play you is when the "forgetful" officer giving disclosure turns out not to be the main interviewer and a far more experienced officer shows up two seconds before the start of an interview.

These are common, although silly, games that are played up and down the country everyday.  It is easy for an experienced solicitor to spot the games and to advise accordingly.

In this case, the experienced officer showed up and began a tedious display of making clear that he normally only deals with really serious robberies and violence.  Not the type of "minor" offence my client was accused of committing.  He also dropped in how he's about to move to the murder squad so we'd all know what a big shot he is... very tedious bigging yourself up just makes you look like a prat.

During the interview the experienced officer asked a question that had two possible meanings.  My client obviously didn't understand it and nor did I.  Politely I asked which of the two possible meanings the officer was getting at.  Aside from stating my name at the start this was the first thing I had said in the interview.  To my surprise, the officer shouted, "don't you interrupt my interview" before I had finished speaking.

If you've ever had the pleasure of reading "Police Interrogation" by former Chief Supt Wakefield you'll know that he advises a number of strategies to undermine the solicitor and make the interviewing officer the sole person to whom the suspect looks while in detention.  I rather suspect that shouting at me so aggressively was just such a tactic.  That's great if you're dealing with a police station newbie but not so great if the solicitor has been knocking about police stations longer than the officer and (as in my case) was at the same police station until 2am that morning, left home at 8am to return for this interview and is in no hurry to get anywhere else afterwards.

My polite request turned into a full scale argument.  Police officers cannot win these arguments.  I have a 3-year-old son and can play the "You did it"/"No you did it" game for hours.  Eventually, the officer backed down and simply rephrased the question so that it made a little more sense.  I have no idea why he was so angry about such a simple request to clarify his question.

The one thing that worries me is that if this detective constable feels happy and confident enough to shout at a solicitor in a tape recorded interview in front of a PC then how does he act toward suspects when nobody is watching?

Tuesday, 30 July 2013

Credit for guilty pleas

One of the basic principles of the English & Welsh Criminal Justice System is that it is an adversarial process.  People like to think that this is somehow different to the rest of Europe but that isn’t true.  They do have slightly different system but when somebody says “I am not guilty” then they pretty much all adopt an adversarial process that we would recognise.  Anyway, aside about Europe over.
Royal Courts of Justice
Because the system is adversarial it is for the prosecution to prove the allegation they make against the defendant so that the jury or magistrates are sure that the defendant is guilty.  This requires the prosecution to produce evidence of the defendant’s guilty that the defendant can either accept or challenge.

When a defendant pleads guilty he or she is accepting the prosecution case against him in its entirety, unless he puts forward a basis of plea setting out that he is guilty but on different facts to those alleged by the prosecutor, which may be accepted or rejected.  If a defendant is guilty he should usually plead as he will receive credit from the judge for admitting his offence, which is reflected in a reduced sentence.

Deciding whether somebody is guilty or not therefore requires that the defendant knows what he is alleged to have done.  This sounds simple but it’s not what is happening in Crown Courts across the country at the moment.  The Court of Appeal (Criminal Division) (CACD) has spent that last 18-months or so producing an ill-thought out line of judgments that restrict the discount available to defendants who do not plead guilty at the earliest opportunity.  Normally the earliest opportunity was taken to mean the first time the defendant was asked to enter a plea – in the Crown Court this was the Plea and Case Management Hearing (PCMH).  But, the CACD’s rulings appear to have shifted the earliest opportunity back to a formally defunct hearing called the prelim where the defence regularly have little or no evidence.  In some cases, judge’s even shift this point back to the police interview – a point at which neither defendant nor his lawyer knows the case against him and at which the police have zero obligation to provide disclosure – and in one case the point moved to before the police interview.

I recently represented a man accused of being involved in a mortgage fraud.  He lives in in the Far East and was initially spoken to by police officers who travelled abroad to meet him as a witness.  To begin with he told them that he wasn’t involved and knew nothing about the crime.  A little later he changed his mind and decided to come clean.  He arranged to return to the UK voluntarily and went so far as to turn Queen’s Evidence, which means he actively assisted the police and prosecution by providing evidence to them.  He was prepared to give evidence at the Crown Court against co-conspirators but the trial judge ruled that because the prosecution failed to serve his evidence in time admitting it would be prejudicial to the other defendants.  The first time he was interviewed by police under caution he made full admissions to the offence.  Despite this the trial judge refused to allow the maximum credit because he had failed to admit he offence when first spoken to by the police, despite him not actually being under caution or even a suspect at the time!

Last week I advised a teenage defendant at the Crown Court to enter a not guilty plea to a drug dealing and money laundering charge because the prosecution had provided no disclosure whatsoever.  I asked the judge to preserve credit on the basis that we had no idea what he was alleged to have done beyond the bare assertions on the charge sheet (not even an indictment!).  The judge’s response was that the CACD has ruled out the possibility of credit being given to defendants who do not plead guilty at the first opportunity and refused to preserve credit (or delay the entering of a plea) until we had some idea of what he was accused of doing.

That young man was very nervous and wanted to plead guilty.  He gave me very clear instructions that he was not guilty.  He wanted to plead guilty simply because he was scared and because he had heard he would get a harsher sentence if he did not say he was guilty.

The move by the CACD toward this more draconian approach to credit for guilty pleas can only lead to unnecessarily lengthened sentences and when coupled with the government’s ridiculous legal aid reforms to more people falsely admitting things they haven’t done.

Thursday, 18 July 2013

Claire's Law - Part Two

A while ago I wrote about Claire's Law (opens in new window), which allows a woman (in the majority of cases I suspect) to enquire of the police about their partners criminal record if the woman or others have concerns about the new boyfriend.

In reply, Anonymous wrote this:
"Abusers can convince you that it was a one off and blame it on the alcohol. They might even put friends and family reassure you that it was out of character. People do not take DV as seriously as they supposed to. That new law can be a life savior. I don't agree that someone has to go through the police to check it. I think it should be public record."
 First, I agree about the manipulation he or she mentions.  It can be quite astounding what some of these people can make others believe.  Many years ago I was junior counsel in a trial where the defendant had convinced ALL of the parents on his street to allow him to take "modelling" photographs of their teenage daughters.  Needless to say the pictures were indecent but the point is that the parents were convinced that this man who lived alone, hardly went out and lived off his modest wage was in fact an influential fashion photographer in the employ of numerous well known fashion publications.

The interesting point for me is the final two sentences, which I have underlined.  I admit that I had not previously considered the possibility of giving open access to criminal records.  About 10-years ago a local authority in Essex decided to name and shame offenders.  As a result photographs of local crooks began appearing around towns. At least one person sued and the High Court made the authority stop their campaign.

What are the implications of making criminal records publicly available?  Proceedings in criminal courts are matters of public record and, in most cases, can be reported in the press.  It does then seem a little incongruous that the Times can report on Tuesday that John Smith has been convicted of having indecent images of children but on Wednesday a potential employer has to apply to the authorities to find out if he is suitable to work with children.

If I applied for a job tomorrow and happened to have a conviction then I may well be required to disclose it to my potential employer.

Mark Zuckerberg of Facebook fame is passionately in favour of everyone being open about their lives to an extent that many of us would baulk at.  I always thought his view was a rather naive, almost childish, one.  But, part of me thinks that Anon's comment about criminal records being freely and openly available to the public makes some sense... maybe it's just the heat.

I wonder if anybody else has a view, either in favour of open access or against.

Thursday, 13 June 2013

Behaving ethically

I’ve not been very active lately as I had surgery a few weeks ago and haven’t been able to do much.  Even now, I’m staying in a hotel (Premier Inn, because criminal law is very glamorous) by the court because I’m not ready to travel all the way to court two-days running.  I’ve been writing a lot of blog posts but haven’t posted any for the simple reason that they are pretty crap – even worse than my usual outpourings.  The injury also appears to have damaged my memory.  I've just looked at the last post, which is utter rubbish and one that I have absolutely no memory of putting on this blog!

Anyway, today I was back in court for the first time in a month or so.  I met a prosecutor who’s ability to lose papers is simply outstanding – better than me and I’ve managed to misplace large stacks of paperwork in under 10-seconds!  This chap gave me my copy of the papers and then promptly lost his own set.  I let him read mine to open the facts then took them back.  He had no list of previous convictions to refer to and had managed to lose the copy intended for the court.

He hopefully suggested that I could tell the court about my client’s offending behaviour.  Even the judge laughed at that suggestion.  I wasn’t about to do the prosecutors job for him and I politely told the judge that I wouldn’t help out.  Judge accepted my position before the words had left my lips.

Outside court another solicitor asked whether I could actually refuse to assist the court given that a defence solicitor has a duty to the court.  I was a little surprised by the question since he’d just sat and watched me do it, so clearly I could do it.  I realised that he was more concerned with resolving the ethical dilemma created by my refusal to assist than my actual ability to say “no” to a judge.  I explained my point of view thus: if he had a trial looming and took unhelpful witness statements from witnesses he would not be under an obligation to assist the court and undermine his client’s case by revealing those witness statements.  On the same basis, why should I do the prosecutor’s job by proving for him that my client has previous convictions?

I know that this will not be a popular stand-point for some people who find it difficult to understand that defence lawyers exist to defend not to prove things against their own clients, but there it is.  I always ask people to imagine how they would feel if they employed a solicitor and he acted against their interests.  For example, if you were selling a house and your solicitor revealed some information that undermined your position and caused your buyer to reduce their offer.  You wouldn’t be happy about that would you?  So, why should somebody accused of a criminal offence be happy if their lawyer actively stands up to prove unhelpful points against them?

Clearly there is a line to be drawn and, I think it is reasonable to say that I went close to the line today but I am happy that I did not and have never crossed the line of what is proper.  The question for me in this case was how to balance my duty to the court and to my client, both must be considered and neither should be preferred over the other.  So, I cannot breach my duty to the court to help out a client and at the same time I cannot breach my duty to the client to assist the court.  By refusing to prove a point against my client, I am not assisting the court but equally I am not lying to the judge or preventing the prosecution from doing their own job properly and putting that evidence before the court.  I thus act in my client’s best interests and I do nothing contrary to my duty to the court.  I have balanced my duty to court and client.

What alarms me is the number of advocates I see who believe that they have an unrestricted duty to tell the court pretty much everything no matter how harmful it is to their clients’ interests. 

At Bar School, professional ethics are supposedly tested throughout the course and every assessment has a minor ethical pitfall for students to avoid.  I also enjoyed a weekend of studying solicitors ethics when I transferred, most of which is focused on what to do when you act for both the buyer and seller in a property transaction.  I’d like to see training colleges for both solicitors and barristers pose more challenging ethical conundrums that require students to really focus on their duties to people other than their own client and the conflict that can arise between the two.