Monday, 22 December 2014

Why is rehabilitation treated as a punishment?

Smoking heroin

I was in court today for a duty session.  I represented a man with a long history of drug abuse and offending.  He had taken a ten-year break from crime and drugs, partly because he spent four-years in prison and partly because he met a woman, married and had kids.  A family breakdown has led him back to heroin.

In the past year he’s committed a couple of minor thefts and been found in possession of heroin, which is why I represented him today.

He agreed he needed help to kick the drugs and wanted me to apply for a pre-sentence report aimed at a community order with a drug rehabilitation requirement attached.

His instructions and the recent offending indicate an escalation in offending meaning it’s very likely that without support he will find himself back before the court having committed further offences.

Ultimately, my application for a PSR was refused on the basis that the offence was not sufficiently serious to warrant a punishment as serious as a community order.  In law, the court was quite right – the possession of a single wrap probably did not merit a community order.  In practice, they will find themselves sentencing this man again in the next few weeks when he commits further offences.

This leads me to ask the question: why do we treat rehabilitation as a punishment?

I have no idea why rehab isn’t imposed as an ancillary order rather than as a sentence.  There’s no reason why participation couldn’t still be mandatory but making the requirement ancillary to the sentence would enable the court to help more offenders get themselves clean and that means less crime for everyone else.

Wednesday, 17 December 2014

Iffy experts, barely there solicitors - who do you trust?

Andrew Wakefield - not the expert in this case
but another very dodgy expert who was out for himself

I have begun a three-part series on my heavily under-used blog The London Drink Driving Solicitor looking at how to find the best solicitor for your case.  It was inspired by some work I did recently for a potential client.

This person is represented by another motoring solicitor who has charged her £915 to prepare and conduct a trial – this figure includes an expert report and Counsel’s fees for the first appearance and trial.  Most barristers want £150 - £250 + VAT for a first appearance and between £350 - £500 + VAT to conduct a magistrates’ court trial like this one and I’m told that the expert report cost £450.  So, I’m not really sure how the firm is making any money from these cases, which is why I wasn’t surprised to see that not very much attention appears to have been paid to the preparation of the case.  This is an example of the “pile ‘em high and sell ‘em cheap” approach to law that I thought only existed in less reputable legal aid firms.

It seems to me that this firm have turned a perfectly winnable case into a no-hoper.

The client is accused of failing to provide a specimen ofbreath for analysis.  Her defence is that she has a medical excuse for her failure, namely that the prescription medication she is taking causes shortness of breath.  This is a common side effect of the drug.

The “solicitor”, and I use quotes because the person conducting the case is not a solicitor although this individual is employed by a solicitor’s firm, has instructed an entirely inappropriate expert to give a report.  The expert lacks knowledge of the fields on which he is reporting but has nonetheless given a report that looks at three distinct fields, none of which he appears to possess expertise in.

In my opinion, reports should have been obtained from an expert in the operation of the intoximeter (there are only three experts recognised by the manufacturers although lots of others claim to be experts), a pharmacologist and a respiratory expert.  It is entirely possible, even desirable, that one expert who is qualified in the human respiratory system and the interaction of drugs upon that system could be found.  The expert chosen discloses no knowledge, training or experience in any of the three fields!

The instructed expert has found that the drugs had no impact upon the defendant’s ability to provide despite shortness of breath being so common that the box has a warning on it!  It is entirely possible that this defendant did not experience the side effect; however, since the expert has not taken the time to examine the defendant nor her medical records his conclusion can only be a guess.

Spirometry Test - sorry for the poor quality
He concludes that her lung function is sufficient to provide a specimen of breath yet he has not performed a spirometry test upon her and, as I say, has not considered her medical history, which includes pneumonia and other similar conditions that may be relevant.
In the report he states that “it is believed that” the intoximeter behaves in a certain way – with respect a real expert knows how it functions and does not need to guess.  He was correct, I know because I checked with one of the approved experts who has received training from the device manufacturers and can pick up the phone to them whenever she has a difficult question.  If he is having to guess then he is not qualified to give an expert opinion.

As seems to be common with a number of the firms who operate according to what I call the “minimum work possible principle” nobody from the firm has ever met the client for a face-to-face discussion of her case.  I know it is possible to prepare a case adequately without meeting the client (I once met an armed robber client for the first 6-months after his case ended – he was so pleased with my work he literally got on the floor and kissed my shoes!!) but I do think that if you are going to do the job properly you should make the effort to meet them.  Most drink driving clients are first-timers before the courts and really appreciate the chance to meet with their solicitor and discuss the case properly, which is why I always try to do that – I even travel to meet them somewhere convenient to them for our meetings as a standard part of the service I offer!

If you are looking for a solicitor then do please read the guide I’ve produced, which is published today, part 2 on Monday the 22nd and the final part on Christmas Eve over on  Do take the time to ask any potential solicitor a whole lot of questions about their service, their experience and what they will do for you.  Don’t ask about success rates – it’s the legal equivalent of going to a used car dealer and kicking car tyres.

Whatever you need a solicitor for – good luck in your case.

Monday, 15 December 2014

Extraordinary day in court

These days it's not unusual for something to go wrong in court but in the past two-weeks I've witnessed two of the worst breakdowns of my career - if you don't include the prosecutor I made so angry in court he tried to punch me that is.

On the 8th December the court service computer broke down nationwide.  I was in Thames Magistrates' Court at the time and witnessed cases being adjourned as no trial dates could be fixed - this meant that they were setting new dates with no idea as to how busy the court would be on the next occasion. 

In a number of motoring cases, the court was unable to verify defendant's driving records due to the failure meaning that people who ought to be banned as they had totted up to 12 or more penalty points could potentially escape disqualification - I don't know if this did happen.

I heard from colleagues that courts all over the country were in chaos.  An entire nation's criminal court system all but stopped working for most of a day due to the failure of one computer system but not a word of this farce have I read in the press despite a journalist being present in the court I was sat in.

Today was definitely the most bizarre farce I've ever witnessed in a court room.  The prosecutor was running late due to an accident on her way in - these things happen.  When she finally made it to court she found that her new CPS tablet wasn't working properly - this is a problem because all CPS papers are stored on computer these days.  She was called into court by the chairman of the bench who demanded an explanation be giving in person.  Said explanation that was duly given and an argument ensued between the prosecutor and the bench.  I'm not sure exactly what started it but the chairman was treating the prosecutor like a disobedient schoolgirl, in return the prosecutor spoke to the bench like it was composed of rather simple-minded fools who refused to listen to reason.

Eventually, both bench and prosecutor left court.  As she left the prosecutor declared that she would not assist the court and they'd have to find somebody else to prosecute the list.

Papers for all the cases and a working computer were delivered to court.  The prosecutor came in long enough to confirm to the clerk that she was no longer willing to prosecute and another prosecutor would be required.

This stand-off continued for over an hour after the papers were delivered to court with the prosecutor in her room refusing to budge.  Eventually, the court's legal advisor intervened and persuaded the prosecutor to do her job and we managed to get proceedings under-way at 11.50am - a mere 1 hour 50 minutes after the court should have heard the first case!

By that time one young woman defendant had missed her grandfather's funeral and even the investigators who brought the case against her were complaining that the delay was an "inhuman" way to treat people.

The more I attend court the more it's like appearing in a Carry On film.

Saturday, 1 November 2014

Police cautions to be scrapped

A PC, no doubt busy "wrongly dishing out" a caution

I read a news story this morning telling me that Chris "Failing" Grayling is to scrap police cautions so that victims of crime do not feel as though offenders are "walking away scot-free".

First, I should say that I don't hold any firm views on whether this is a good idea or not; however, being deeply cynical of all noises emanating from the mouths of politicians I am inclined to see this as populist hot air.

What are police cautions?  In case you don't know and, like Mr Grayling, believe that a police caution means nothing I shall explain what these things are.  The police can issue a caution where a crime has been committed, somebody has admitted to the crime and has expressed regret.  They will not usually be given if the offender has received a previous caution or has been convicted of a similar offence.  They are useful where it might not be wise to criminalise somebody, e.g. a 12 year old stealing some make up - the cost of prosecution and the resulting criminal record may make some people think that going down the court route is a waste of time, money and resources.  It is also likely to have repercussions for the child later on and may make future offending more likely as a result.

There are two types of police caution: simple and conditional.  Both are normally only used for minor offences.  A simple caution is the end of the matter; however, the caution is recorded on a person's criminal record, although it is not a conviction, and may be disclosable in certain situations.  It will show up on an enhanced criminal records check.  A conditional caution is the same as a simple caution except that the offender must complete some additional task, e.g. paying compensation, writing a letter of apology to the victim, cleaning graffiti or taking part in a drug rehab course.

Mr Grayling proposes a two-tier system whereby first time offenders would receive a "statutory community resolution", which the BBC says, "could see them offering a verbal or written apology to their victim, paying compensation or fixing damage."  The Ministry of Justice has said that community resolutions would not be recorded on criminal record.  So, it's basically a conditional caution but one that is not going to show up on an enhanced criminal records check... I'd call that watering down the existing system but then what do I know?

More serious offences will receive a suspended prosecution that could see offenders paying a fine or attending a drug rehab course.  The wording of the announcement suggests that suspended prosecutions could be issued to second (or more) offenders and that rehab would not be available for those handed a community resolution.  I also can't help but notice that neither the community resolution nor the suspended prosecution currently allows for compensation to be paid to the victim, unlike existing conditional cautions!  The fact that suspended prosecutions are designated for "more serious offences" also suggests that they will be used for offences that would currently be outside the scope of the existing cautioning system in ordinary situations.

The proposals toughen up the cautioning system by abolishing the simple caution; however, they also appear to water down the system in other ways.  For example, by appearing to allow cautions for second time offenders and for more serious offences.

I also wonder who is going to administer this new system?  In the 12-months to September 2012 there were 205,700, which is a 44% fall from the year ending September 2007.  If we are now going to have 205,700 people either being prosecuted or taking part in the new community resolutions and suspended prosecutions then we are going to need a LOT more people monitoring, organising and running these schemes.  Do the Government expect the police to do it?  If so, I can promise you they'll be a lot less bobbies on the beat.  They can't expect the National Probation Service to do it since they just effectively abolished them as well and handed the work to their mates in the private sector (50% of the work went to a major Tory donor and a company run by the wife of the Chief Inspector of Probation - incidentally the inspector was appointed by Grayling and the contract was awarded by... er... Grayling).  So, who exactly is going to run this system and check that the conditions imposed are actually being complied with?

Sadly, in the modern "talk tough... talk bullshit" culture in which politicians exist I don't expect any reasoned debate from the opposition after Sadiq Khan said, "Under David Cameron's government, too many criminals have been getting away with serious crimes.  On their watch, cautions have been dished out wrongly for serious sexual and violent crimes like rape."  It's worth saying that in 2011/12 there were 16,000 reported rapes the police had a detection rate of 30% whereas only 21% of robberied and 13% of burglaries ended with a sanctioned detection, i.e. were solved.  Of those 16,000 rape reports there were 19 cautions "dished out" for rape and of those 19, 16 were given to offenders under 18 years of age.  I'd hardly describe a caution rate of 0.1% as "dishing out" cautions and would suggest that it is an indication of prosecutors and police using their discretion to give a caution only when appropriate.

Sadly, Mr Khan obviously doesn't know what he is talking about, to suggest that cautions are simply "dished out wrongly" shows either a shocking failure to understand the Criminal Justice System or a willingness to play politics with an important public system designed to protect society and individuals.

Mr Khan's words about cautions being "dished out" are particularly galling given that in 2007 (when Mr Khan's party was in power) there were 367,300 cautions handed out compared to 205,700 in 2012.  Also in 2007 there were 27 cautions "dished out" to men accused of rape or attempted rape of a female, which is higher than the 19 in 2012.  But, as a politician Mr Khan will have no interest in letting facts get in the way of a good political football.

Politicians like to play politics and they don't care if they play it with each other, rape victims, child abuser victims or anyone else.

Wednesday, 15 October 2014

Other solicitors

I'm always amused by claims made by other solicitors and concerned when a lot of them don't appear to be quite as honest as they should be.

I regularly hear potential clients give me an account of their escapades that discloses a potential defence or special reason for avoiding a driving disqualification.  I'll give them an honest opinion based on the information they've given me only to be told that another solicitor has told them that he or she can guarantee an acquittal.  It doesn't take a genius to work out that anybody who can guarantee an acquittal is selling snake oil, especially when the claim is made without having seen any evidence whatsoever.

Success rates are another favourite claim of mine - personally I tell anybody who calls that I don't keep a record of success rates because they are rather meaningless.  If I decide to only take cases I'm likely to win then I can engineer a very high success rate.  Alternatively, I might get to my chosen success rate by excluding particular types of case, e.g. where a client doesn't follow my advice or where a defence witness doesn't show up to court.  Things can always go wrong that aren't the solicitors fault so you can quickly exclude pretty much anything you like.

One firm I've come across recently claims "94% Cases defended at court!"  Now, I have no idea what that means.  Does it mean that they show up to 94% of court hearings, i.e. that they don't bother to attend 6% of their client's hearings?  Maybe it means that in 94% of cases they showed up and did their best but in 6% they didn't really try hard.  It could mean that of all the people that have come to them they have taken 94% of those people and their cases to trial.  I have no idea what it means, but big numbers do sound good don't they?

Interestingly, I've come across a specialist motoring law solicitors who only defend drivers accused of crimes.  Their website talks about their great advocacy but none of the staff hold any advocacy accreditations.  More interestingly, out of all the solicitors employed at this criminal motoring law firm only one claims to specialise in criminal law - others appear to be specialists in commercial dispute resolution and commercial litigation.

I'm sure that I will continue to hear more bizarre claims from my fellow solicitors in future.

Thursday, 9 October 2014

Bringing the law into it

But it would be nice if we could get the law right

If you see me in court and somebody brings up a point of law you may well hear me jokingly ask the judge “not to bring the law into it”.  I don’t mean it (unless the law happens to be against me, in which case I’d much rather it were left out), but there are an increasing number of people who genuinely seem to believe that the actual law has no place in a court of law.  They will happily quote their version of the law but the actual law… well we’ll leave that at the door.

I recently conducted a trial at the start of which the prosecutor forcefully informed me that my defence had no basis in law.  I obviously told him that was jolly fascinating and that he should tell somebody who cared.  Next up popped the court legal adviser who told me the same – in suspiciously similar terms to the prosecutor.  I pointed out that my defence was valid at which he scoffed.  I recommended he go and read a particular case.

In court, both the prosecutor and legal adviser lectured the court that one part of my defence had no basis in law.  I corrected them both with reference to the law!  After much brow furrowing the legal adviser managed to locate the relevant passage in Wilkinson’s.  He grudgingly conceded that I might be correct but then went onto give his own spin on the law that effectively amounted to “well if the police officer doesn’t think this was relevant then the court cannot go behind that.”  Now, this is clearly a nonsense – decisions by police officers binding courts might be popular with Theresa May but it is rather a bad show for the concept of justice.  He also tried to distinguish the case law from our case on the facts, despite him not knowing the facts of the case law.

The thing that particularly annoyed me was the legal adviser’s decision to give a detailed description of how the Court of Appeal intended its decision to affect future cases WITHOUT READING THE CASE!  All he had to go on were five lines in Wilkinson’s that give nothing more than a passing description of the facts and decision, while the actual report is about 12 pages long.

This is by no means an isolated incident.  Earlier in the year, I caught out two advocates attempting to use cases against me that they had glanced at in Archbold but had neither read nor understood.  Although to be fair, in one instance the learned editors of Archbold had got the case law wrong as well so it wasn’t entirely the advocates fault.  One of the advocates was very junior so has no excuse for having forgotten his legal research skills.  The other was very senior prosecuting me in a child abuse case in the Crown Court and so had no excuse for not having learned the lesson of not relying on cases you haven’t bothered to read!  Incidentally, in both instances I had anticipated the relevance of these cases in my preparation and so took the trouble to read them in advance.

I imagine that this is a new thing, although, like complaining about the atrocious behaviour of the modern youth, it may be as old a complaint as time itself.

I can’t help but wondering whether the lack of investment into the Criminal Justice System is behind what seems to me like a downward trend in the effort put into researching the law for cases.  Staff levels in magistrates courts have been heavily cut, as have costs in the CPS and defence firms all of which means there are often less people trying to do the same (or often more) work thus leaving little time for preparation, which includes proper research of the law.  In the magistrates’ court, it is very common to see a prosecutor who has been handed several piles of papers with no opportunity to read any of them immediately before the trial begins.  It also means that legal advisers frequently rely on elderly copies of legal books and have no access to the online research tools that are available, which can cost several thousand pounds per year to access.

Tuesday, 30 September 2014

Revenge porn (again)

Screenshot from banner of revenge porn website
Revenge porn
I talked about the proposal to create an offence involving images that are construed to be "revenge porn" back in June.  It's an issue that simply won't die the death it so desperately needs to.

In the latest instalment of the campaign for yet more legislation the BBC published a story of one woman's "six-month ordeal" at the hands of her ex-boyfriend.

I am sometimes accused (usually by people who don't read the whole thing) of lacking sympathy for victims and not wanting offenders prosecuted, but that's not true.  I do have sympathy for this lady and have no problem with her ex being prosecuted.  What I object to is the knee-jerk reaction to create a new crime for every social problem in the hope that will solve the problem... it won't!  I'll let you into a secret - murder has been illegal for as long as anybody can remember yet people are still murdered... on average someone is killed unlawfully every day!  Making revenge porn a crime won't stop it happening it will just mean that there is a new crime that the police don't have the resources to properly investigate and prosecute.

The thing that angers me the most is that in the campaign to promote this new legislation victims are being let down.  I give you this line from the Beebs story, "Surrey Police said it was "virtually powerless" to act as "revenge porn" was not covered in criminal legislation."

"Virtually powerless"?  Now, I know that Surrey Police have heard of the Protection from Harassment Act 1997 (itself another hastily and poorly drafted knee-jerk reaction to a high profile case in the mid-1990s) because I've sat in interviews where their officers have questioned suspects accused of harassment.  Section 1 of the Protection from Harassment Act 1997 has this to say:

"(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other."
How do we know whether something is harassment or not?  Well, the PHA 1997 has the answer in section 1(2):

"the person whose course of conduct is in question ought to know that it amounts to [or involves ] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to [or involved ] harassment of the other"
We are also told by section 7(2) that harassment can include "causing the person distress".  I suspect that publishing dirty pictures of somebody without their consent would cause them distress.

Section 7(3)(a) of the Act tells us that a "course of conduct" means "conduct on at least two occasions in relation to that person".  At section 7(4) it also tells us that “'Conduct' includes speech".

So, were the police correct to say that they were powerless to help the lady in Aunty's story?  Clearly not.  There was plenty they could have done. but for whatever reason they appear to have chosen to do nothing.

Tuesday, 26 August 2014

Stupidity of the system

I sometimes find myself despairing at the stupidity of the Criminal Justice System.  It's 5am as I write this and I've just had a client charged with the offence of causing a public nuisance, which is an ancient common law offence of little value in the modern world - I tend to think that when an offence is so rooted in history that nearly all the major developments happened not in this century, nor the one before and only barely in the one before that it may be time to let the offence quietly die.  The earliest case on public nuisance I can easily find that is still relevant dates from 1703 and the current definition of the offence appears to date from sometime prior to 1835!

Public nuisance, no matter how ancient, isn't the stupidity that has me up and annoyed when I should be asleep.

In this case, the accused was transiting the UK at a major airport.  His flight was delayed and staff found his behaviour sufficiently egregious that they called police after a threat was made (but not carried out) to damage the airport carpet.  The accused denies that this happened.

Any sensible person would look at this relatively minor offence by a foreign national, kick them out of the country and ban them from ever returning, even simply to transit through.  Given that the UK is one of the world's major transit hubs you'd think that this would cause difficulties enough.  But no, here in the UK we would rather charge somebody with an ancient offence and hold them in custody to ensure that they miss the flight that would relieve the British taxpayer of the burden of dealing with them.

Assuming that this person is convicted, they are going to receive a small fine at worst - I say this because despite the charge this is really an allegation of making threats to cause criminal damage under s. 2 of the Criminal Damage Act 1971.  The Magistrates' Courts Sentencing Guidelines indicate a maximum of a fine where actual but minor damage has been caused.

Given that this person denies committing the offence, what will the system do if she enters a not guilty plea and chooses to be tried in the Crown Court?  They'll refuse him bail and keep him in custody resulting in a huge cost to the taxpayer.  I've seen this done before in other cases and only once have I managed to successfully persuade a court that simply because somebody is a foreigner doesn't mean that they are going to fail to attend court.  In the last case of this type, a man was accused of going equipped to shoplift - nothing had been stolen.  He had no previous convictions in the UK, denied the offence and was remanded in custody to await a trial that had been set for two-months hence!  The sentencing guidelines indicate a sentence of up to a community order, i.e. not prison.

I'm not arguing that foreigners should have carte blanche to do as they please in the UK without fear of punishment, but what I am saying is that when an offence is so minor that the only realistic punishment is a small fine (that will probably never be paid) then it is not in the interests of the British public to prosecute and spend taxpayers money on what is effectively a pointless prosecution.

I've always found the following to be the wisest part of the Code for Crown prosecutors:
"5.6   In 1951, Lord Shawcross, who was Attorney General, made
the classic statement on public interest, which has been
supported by Attorneys General ever since: “It has never been
the rule in this country — I hope it never will be — that
suspected criminal offences must automatically be the subject
of prosecution”. (House of Commons Debates, volume 483,
column 681, 29 January 1951.) "

Monday, 16 June 2014

Revenge Porn

Revenge Porn

Julian Huppert MP, a Liberal Democrat Member of Parliament, has called for a new law to outlaw “revenge porn”.  Now for those who don’t know, revenge porn is the name given to the publishing online of intimate photographs of an ex-partner for the purposes of taking revenge for some real or imagined offence by the “victim”.

Mr Huppert correctly points out that “[l]ives can be ruined, personal relationships destroyed and jobs lost”.  That’s terrible, but it raises a couple of important questions: a) does the harm necessitate yet another criminal offence?  And b) is the criminal law an appropriate tool for dealing with this type of behaviour, i.e. should “revenge porn” be a crime?

Over the past 20-years or so, it has become very trendy for Governments in the UK to create new criminal offences – I believe that by the end of the last Labour government they had created more new crimes then every other government before them put together!  As a student barrister, I was taught that going to law, i.e. suing somebody, should be a last resort.  Equally, creating a new crime should be a last resort for a government.

Let’s have a quick think about what “revenge porn” actually is.  These are photographs of people, usually but not always women, in intimate situations – they may be straightforward nudes or photographs of the individual in flagranti.  They are images taken with the person’s permission; if they were not then taking the photographs would already be a crime under section 67(3) of the Sexual Offences Act 2003.  They are photographs of adults; again, such photographs of people under 18-years of age are already criminal.

Taking a common sense approach, we all know that if we allow somebody else to have an intimate photograph of ourselves then we are taking a risk that the image will appear online or will be seen by somebody else – whether deliberately, accidentally or as a result of the device they are stored on being stolen.  To my mind, criminal law is very much a bandage for covering a wound.  It is not great at preventing crime happening… if you don’t believe me then take a look at how many crimes happen every year, all committed by people who have not been put off by the illegality of their actions!

Prevention is far better than a cure.  It occurs to me that children should be taught to think their actions through and consider what the consequences of an action might be.  Thus, when they reach their late teens (and even far greater ages – anybody remember Leslie Grantham?) they might consider the possible consequences of sharing these types of photographs and not do it!

In addition, we might try teaching children that when somebody shows a great deal of trust in us we should not break that trust.

One of the things I encounter regularly and which I see as a major problem in our society is the abdication of responsibility.  I represented somebody at trial once who took a taxi to court each morning.  He was on benefits and eventually ran out of funds for his taxi.  Rather than accept that he should have just taken a bus the short distance from home to court he blamed the court for not paying for his transport!  When I did legal aid work, I regularly came across parents who blamed teachers, police, courts and anybody but themselves for their child’s inability to accept authority.  Duty solicitors will recognise the type who shows up at court for their trial having done nothing to prepare their case or get a solicitor and expect to rely on the duty only to become angry when they find the duty won’t help them.

Politicians add to the sense that everything wrong in your life is somebody else’s fault with constant calls to criminalise every type of reprehensible conduct.  Ultimately, “revenge porn” photographs are pictures that an adult has agreed to allow somebody to take or keep.  Quite frankly, if you are old enough to vote then you are old enough to know that when you take a picture of your tits, balls or whatever there is a chance it will end up on the internet and old enough to make that decision.

Turning back to the two questions I originally posed myself: does the harm necessitate a new criminal offence?  I answer this in the negative.  There is potential for harm to the person in the photograph but the harm is obvious and easily foreseeable at the time the photograph is taken.  The people we are talking about are adults with the power to join the army, marry and vote at elections, if they cannot weigh up the risks and benefits then they shouldn’t be allowed to leave their house in the morning!

The second question was: is the criminal law an appropriate tool for dealing with this type of behaviour?  Criminal law is a sledgehammer that should be used in appropriate circumstances.  It is not good at shaping behaviour.  Would a criminal offence stop the photographs circulating online?  Not a chance.  Would it stop an angry ex-boyfriend who feels he’s been wronged posting a photograph online?  No, it doesn’t stop people committing other crimes so why would it stop this?

We each have decisions to make in life.  We each know the risks and benefits of each decision we take.  Each one of use must accept that we are responsible for those decisions and their foreseeable consequences.

Thursday, 5 June 2014

Criminal property

A real life burglar... no idea why police can't catch them given they all
wear stripy tops and carry bags marked "SWAG"

Tomorrow I am at a west London Crown Court starting a trial for possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002.  Let me begin by assuring you that this is a provision that does two things: a) it really pisses me off; and b) it shows why the legislature should not put its faith in the prosecuting authorities only using criminal offences for the purpose the legislature intended.

My case is straightforward, prosecution say my guy has a stolen laptop in his possession and that he knew or suspected it to be stolen.  If they are correct then he is guilty, if he bought it honestly then he is not guilty.  Easy.

You may be forgiven for thinking that possessing stolen property is an offence called “handling stolen goods”.  If you thought that then you are correct, section 22(1) of the Theft Act 1968 reads:

“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be  stolen goods he dishonestly receives the  goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.”

So, to convict somebody of handling the prosecution would have to prove that the laptop was stolen, that he knew or believed the goods to be stolen and having such knowledge dishonestly receives the goods.  The dishonesty part is important here; let us say that John offers Mark a laptop, which Mark recognises as having been stolen from Lucy.  Mark agrees to buy the laptop from John so that he can return it to Lucy.  In those circumstances, he is accepting stolen goods that he knows to be stolen but he is not acting dishonestly so he is not guilty of an offence.  Obviously, if he intended to keep the laptop rather than return it he would be acting dishonestly and would be guilty of handling.

Now, let us turn to section 329(1) of the 2002 Act, which reads:

“A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.”

Section 329(1) creates three ways in which an offence can be committed, i.e. by acquiring, using or possessing criminal property.  This section must be read in conjunction with section 340(3), which defines “criminal property”:

“Property is criminal property if—
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.”

So, to prove an offence of possessing criminal property the prosecution need only to prove that the defendant had possession of something that is the “benefit” of a crime and the defendant needs to suspect that the property represents such a benefit.  Because it is much easier to prove a suspicion than a belief, as required for the Theft Act and because there is no need to prove any dishonesty at all the prosecution find it much easier to secure a conviction for possessing criminal property than for handling stolen goods.  In our example with John, Mark and Lucy, Mark would be guilty of possessing criminal property even where he intends to return it to Lucy because there is no need to be dishonest.  Mark might well have a defence, but remember in the Theft Act the prosecution must prove dishonesty, there is no requirement for Mark to prove anything.  In the possession offence, it is for Mark to prove his defence, so we can see that this offence effectively reverses the burden of proof for Mark.

Like me, you may be thinking that describing a stolen laptop or TV as “a person’s benefit from criminal conduct” is a bloody odd thing to do.  The wording looks daft as a brush for a very good reason; section 329 is designed to unify and replace old offences under the Drug Trafficking Act 1994, Criminal Justice Act 1988 and various offences relating to Scotland and Northern Ireland.  When Parliament sat down to write this piece of legislation it was trying to bring to justice drug smugglers, gangsters and those who work for them ferreting away their ill-gotten gains.  In other words, Parliament’s intention was to prosecute money launderers.

You can see this clearly when you look at the defences to possession of criminal property, which include making an authorised disclosure to the authorities before taking possession of the criminal property.  Thus if you are a lawyer who is holding money for a client you suspect may have got it from crime you can report this to the police before you take the loot and your back is covered… well until your gangster client finds out and you wake up with a horse’s head on your pillow!  Another defence relates to crimes committed overseas where the activity was lawful… these are not defences that are ever likely to apply to stolen TVs and computers!

At no point, did Parliament intend this heavy-duty legislation to be used to criminalise a the type of person who buys an iffy tele from a bloke in the pub… they didn’t need to do that because it was already illegal!

This leads us on to a very important question: why do the Crown Prosecution Service insist on charging inappropriate offences when there are offences designed for the precise facts of their case?  Around 2004, I started to notice handling charges being preferred with possession of criminal property as an alternative count.  It was obviously being done so that if the CPS failed to get home on the proper charge they had the easier one to fall back on.  10-years later and they don’t even bother trying to get a conviction on handling the only reason I can think is that when you have to prove extra points the trial takes slightly longer resulting in higher costs.  So, the prosecution pursue these inappropriate charges simply to save money rather than to see justice done properly.

Does it make a difference in practice?  We’ve already seen that in some cases charging s.329 instead of handling stolen goods results in an effective reversal of the burden of proof thus making it harder for an innocent defendant to prove their innocence.  You’ll also notice that handling and possession of criminal property have a maximum sentence of 14-years-imprisonment, so you might think it a little unfair that the prosecution can get you sent to prison for just as long by using an offence that requires far less evidence.  Also, handling is an offence of dishonesty.  Prospective employers may make a decision about hiring somebody who has proven themselves to be dishonest in the past, whereas possessing criminal property has no dishonesty element to it.

Although this post was written before the start of the trial – I have held it back until the conclusion so as to avoid any problems.

After the case, I spoke to the police officer about why they use money laundering legislation rather than the Theft Act.  He pointed out that for every successful prosecution of Proceeds of Crime Act offences, his team receive a share of any cash recovered.

Sunday, 1 June 2014

Emotional abuse of a child: Cinderella’s Law

There’s been a lot of talk on the TV, radio and in the press over the past couple of days about the introduction of a new criminaloffence to outlaw the emotional abuse of children. 

Because all new laws involving children are now required by the Ministry of Silly Names to have a silly name, this proposed law is called the Cinderella Law.  Presumably because the ugly sisters neglected her and subjected her to regular verbal abuse.

I heard a solicitor, described by the radio presenter as a “children’s lawyer”, on my radio yesterday explaining how we should avoid introducing this law because it would be “impossible to define” and difficult to implement.  With respect, laziness is one of the worst reasons not to do something if it is important enough to need doing. 

In this instance, there is a far better reason for not introducing this Cinderella Law.  I point to section 1 of the Children and Young Persons Act 1933, which already criminalises emotional abuse and child neglect.  It reads:

“(1) If any person who has attained the age of sixteen years and [has responsibility for] any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor, and shall be liable… to imprisonment for any term not exceeding ten years”

It’s a bit wordy but would this 81-year-old law protect a modern-day Cinderella?  Well, yes it would.  “Ill-treats” sounds old-fashioned to the modern ear but its meaning is easy to decipher.  It’s not a physical assault as that is covered by “wilfully assaults”.  It’s not neglecting, abandoning or exposing a child as they all get their own mentions.  Archbold, the criminal lawyer’s bible, tells us, at 19-386, that to make out an allegation of ill-treatment, “bullying or frightening will suffice”.

How often are cases of ill-treatment prosecuted?  Well I don’t know and I doubt that there are any figures kept for that specific part of s.1(1) of the 1933 Act.  I've certainly acted in such a case where the child accused the parents of, among other things, emotionally abusing him.  In that case, the child told his teacher that his parents would tell him they wished he’d never been born, that he was worthless, that they wished he was dead and that he was not as good a person as his siblings.

So, should we introduce a brand-spanking new law to do exactly what a perfectly good 81-year-old law does?  No, I don’t think we should.

Thursday, 29 May 2014

What's the point any more?

Not my judge... but might as well have been

I had the joy of travelling to court today for a wasted costs hearing.

If you don’t know, where costs are incurred by a party to proceedings because of an improper act or omission by another party the court may award costs against the party who did the improper act or omitted to act.  These are known by lawyers as wasted costs.  This is important because it allows a party to recover costs they would not have incurred but for the other party’s error.  This can be used by the prosecution or defence in criminal proceedings.  It is not an easy test to meet and the party making the application must show that there was something improper about the other party’s act or omission.

In my case, the Defendant had been acquitted.  More correctly, the prosecution had discontinued the case the day before trial despite being aware that they had no case since the very first court hearing.  Had they acted properly at that first hearing they would have discontinued the case immediately.  Because they did not the Defendant was forced to defend himself.  We thus argued that the Crown had omitted to act and that their failure had resulted in unnecessary costs to the Defendant.

The judge at today’s hearing heard the arguments on both side, read the written submissions and agreed with the Defence submissions that the Crown’s failure to act was improper.  He rejected all of the prosecution’s arguments and criticised their approach to defending the wasted costs order.  The District Judge said:
“In this case investigation was poor from the outset.  The Defence drew the Crown’s attention to a major defect [in the Crown’s case] and the Crown failed to respond expeditiously or notify the Defence of their conclusion to the point where this got to within 24 hours of trial before discontinuance.”

The Crown had sought to rely upon their lack of resources as a defence to the wasted costs application.  The DJ criticised their response to our application thus:
“Singh v Ealing Magistrates’ Court tells us that pressure on resources is no defence.  It is a pity that the Crown’s skeleton argument is a cut and paste job that includes parts from many other skeletons that have come before me.  It pleads ‘lack of resources’ despite Singh and it is not specifically directed to this application.”

The DJ went on to complain about consistent and repeated failures by the Crown to comply with court orders and the Criminal Procedure Rules.  He ruled that:
“There has been an improper omission to review the case expeditiously… I take the view that because of that failure the Defence has been put to additional work.”

Much to my surprise he then declined to make a wasted costs order saying that he was exercising his discretion not to make such an order; however, he did make a Defence Costs Order.  The problem for the Defendant is that a DCO is capped at a very low hourly rate; however, wasted costs orders are not capped and so the applicant can recover what they have actually spent.

So, the Defendant is now in the position of having been prosecuted for a crime he didn’t commit.  He’s been put to additional expense because of failings by the prosecution.  He’s done absolutely nothing wrong.  Despite all that he’s left out of pocket.  I don’t understand why and I doubt he does either.

Tuesday, 20 May 2014

The sin of poverty we do disdain

Morpeth Street Coronation Street Party
I went to see my parents yesterday; they don’t often talk about their childhoods but yesterday my mum told me about the death of her Nan and a time when one of her elder brother had pneumonia.

As a child, my mum lived in a condemned slum dwelling in east London where I’m told that the ground floor lacked floorboards and was uninhabitable.  A couple of years ago my uncle (who is about 15 years older than my mum) told me that he was ashamed to live there and despised the acceptance of the conditions they lived in by those around him.

It was in those conditions just prior to the beginnings of the NHS that my great-grandmother fell ill.  There was no NHS to help her and the family could not afford to pay a doctor.  They were fortunate that the Whitechapel hospital was very charitable and doctors could be found to tend to the sick.  A doctor duly visited my great-grandmother at the family home and promised to do anything he could to help her.

The doctor left to go about his work; he’d been gone less than five minutes when my great-grandmother died.

Had there been access to proper housing, GPs and other medical help then who knows whether she might have lived longer?

The other story was very similar – her older brother contracted pneumonia as a child; there was no NHS to turn to and the family could not afford to pay a doctor.  This time there were no charitable doctors willing or able to give their time to treat a seriously ill child.  Fortunately, he lived – but imagine being a mum or dad, having a very ill child, knowing he might die and that there are doctors nearby who can help him but not having the money to pay for that help.  This is in living memory, in the capital city of the UK not in some two-bit former-colony... yes USA I am looking at you!

For all their talk of praising the NHS and keeping services free at the point of use, politicians are failing to protect a vital service to which a lot of citizens in other countries would love to have access.  Yes, yes, I can hear the cynics already simultaneously decrying the claim that other countries envy our NHS while grumbling about all those foreigners coming over here to use our free NHS and failing to grasp the contradiction there.  I suggest many in the USA would love a fairer system, such as the thousands who lined up for days to access a range of free medical services, including childhood immunisations that could save the life of a kid and that we take for granted.  Incidentally, health insurance for a family in 2009 cost an average of $13,375, that's more than I pay on my mortgage each year!

It is quite possible and even probably that the rich pay more to fund the NHS than they would do under a wholly privatised system.  To them I say, so what?  Nobody likes giving away their money but the alternative is a return to the previous system where those who can pay live and those who cannot die.  We, as a society, need people to do low-paid work because some jobs need to be done and are never going to pay a huge amount of money.  The least a society can do is look after those who need help in moments of crisis.

UKIP say they would keep the NHS free at the point of use but read the small print and they want us to have a health service like Austria, where the overwhelming majority of care is privately funded.  Thus leaving the potential for unmet need for many of the poorest in society and adding additional financial pressure on hard-working families who need to pay for medical insurance.

Labour began the process of privatisation, which is now being taken forward at speed by the Tories.  I don’t have a problem with commercial companies making a profit (not even a big profit… or even a fucking massive profit) if they are acting fairly and lawfully but I do have a problem with the privatisation of public services.  It just never goes well.  The railways are an expensive, complicated nightmare (e.g. a season ticket on the train would cost me £518 per month compared to £265.67 per month to drive, which includes insurance, road tax, petrol and purchase price of my motorbike).  Government IT system fuck-ups are too numerous to mention, the court interpreters contract was an expensive mess as was the Defence Solicitor Call Centre.  Don't get me started on the expensive waste that is the PFI scheme.  And just think what happened when the LAPD was privatised in RoboCop!

As for the Liberal Democrats, well I voted for them last time and I’m not doing that again!

All too frequently at the moment poverty is something to be disdained by the political classes and to be poor is equated with being unmeritorious in some way - TV shows like Benefit Street and How to Get a Council House depict the poor as scrounging layabouts or members of the criminal classes.  Politicians and others talk in ways that suggest poverty is a sin or even that those claiming to be too poor to feed themselves are simply liars on the scrounge for a free dinner.

What is the point of this post?  I don’t really know – maybe it’s a chance for me to moan about politicians or maybe it’s a chance to share a story to remind people that going back to a time without a path from cradle to grave is a horrific thought.  Maybe it’s just the fact that as I type this post Billy Bragg is blaring out of my stereo:

“I was a miner
I was a docker
I was a railway man
Between the wars
I raised a family
In times of austerity
With sweat at the foundry
Between the wars

I paid the union and as times got harder
I looked to the government to help the working man
And they brought prosperity down at the armoury
"We're arming for peace me boys"
Between the wars

I kept the faith and I kept voting
Not for the iron fist but for the helping hand
For theirs is a land with a wall around it
And mine is a faith in my fellow man
Theirs is a land of hope and glory
Mine is the green field and the factory floor
Theirs are the skies all dark with bombers
And mine is the peace we knew
Between the wars

Call up the craftsmen
Bring me the draughtsmen
Build me a path from cradle to grave
And I'll give my consent
To any government
That does not deny a man a living wage

Go find the young men never to fight again
Bring up the banners from the days gone by
Sweet moderation
Heart of this nation
Desert us not, we are
Between the wars”

Friday, 2 May 2014

Police power to stop vehicles for others

A police road check in action

Last night I caught part of a BBC3 TV programme that focused on different aspects of parking from one man who hangs about outside his house with binoculars trained on anybody daring to park on “my” road to bailiffs engaged in stopping motorists who had outstanding parking fines and seizing their vehicles.  It was the bailiffs that interested me the most.

First, I should say that bailiffs do not have the power to stop traffic, only the police can do that and, sure enough, there were police officers conducting the stops to allow the bailiffs to carry out their work.  My first thought was that surely the police have better ways to spend their limited resources than helping private companies enforce civil debts (parking tickets were decriminalised a long time ago).  Then I got to wondering how the police could have the power to stop somebody for such a reason.

There are a variety of powers that allow the police to stop a motor vehicle but the one that seems the most relevant is section 163(1) Road Traffic Act 1988, which reads:

“A person driving a motor vehicle on a road must stop the vehicle on being required to do so by a constable in uniform

It is a criminal offence under s. 163(3) for a person to fail to comply.

The rule seems pretty clear: a police officer in uniform can stop any car they fancy whenever they like.  That would be absurd.  For example, a PC angry that his wife had left him for another man could use this power to lawfully stop her new lover.  Clearly, an unrestricted and unfettered power would be wrong.  In the case of R v Waterfield [1963] 3 All ER 659, the court held that section 163 does not permit the police to stop a vehicle for an improper purpose.  This line of reasoning was followed a decade later in Hoffman v Thomas [1974] RTR 182 in which the court held that a constable must be acting in execution of his duty for a stop under what is now section 163 to be lawful.

The issue in Hoffman was whether a police constable had power to require a motorist to stop and at a census point.  The court in that case found that assisting in the conduct of a census was not part of the police officer’s duty, which at common law is to protect life and property and, as such, the constable was not acting in the execution of his duty and so the motorist was not guilty.

Later cases have expanded on these themes such as to allow a lawful breath test to be conducting notwithstanding the unlawfulness of the stop.  It was also suggested that random stops are perfectly lawful in that they give a police officer an opportunity to form a view on whether somebody has been drink driving etc.  However, it is important to note that these would likely be reasons that fall within the execution of his duty.

We must now ask ourselves what it means for a constable to be acting in the execution of his duty?  In Hoffman the court decided that a police officer’s duty is the preservation of life and property.  Now, I do not know how much consideration the court gave to that definition but, I believe it is broadly accurate, if somewhat old fashioned. 

The Association of Chief Police Officers in what their call their “Peelian Principles” states that, “The basic mission for which the police exist is to prevent crime and disorder. (  I would add to that “detect and investigate crime” as well, but that could arguably be included in the word “prevent”.  That seems like a pretty good mission statement for any police force so we can infer that the duty of a police officer is to prevent crime and disorder.

Is assisting a private, for profit, company to collect civil debts acting in the execution of a police constable’s duty?  I think that the answer has to be “sometimes”.  Where bailiffs are collecting goods from an address the police may be asked to attend where the bailiff believes that an offence may occur if the police are not present.  Fair enough.  So, what would happen if bailiffs attempted to flag down passing cars from the side of the road without the police being present?  Most likely is that the cars would continue driving past.  Would an offence be committed?  I don’t see why an offence is any more likely in that situation than any other.

If a police constable stops vehicles simply to allow a private company to collect civil debts does that prevent crime and disorder?  I would suggest that it does not.  Therefore, I believe we can say with some certainty that a stop under s. 163 of the Road Traffic Act 1988 would not be lawful in such circumstances.

Which leads me back to my original questions: don’t senior police officers have anything better to do than send their officers out working as debt collectors?

Tuesday, 29 April 2014

Cowboy solicitors

This seemed appropriate

When I was training, I was taught that solicitors and barristers should be highly professional, doing their best for their client no matter what – especially if the clients’ interests conflicted with the lawyers’ personal interests.

What I see in practise from those undertaking legal aid work almost always conforms to those high principles.  Sadly, the more I hear about lawyers undertaking privately financed work – i.e. criminal law work paid for by the client rather than legal aid – is falling short of those principles far too often.

Today I spoke to a client who has a drink driving case.  He contacted me and another solicitor for representation.  Neither of us has seen the prosecution evidence since it has not been served yet.  I have my note of our original conversation in front of me, I advised him on possible defences, special reasons and the likely sentence if convicted or if he chose to plead guilty.  After hearing his account, it was clear that there was no defence arising from his instructions and probably no special reason for the court not to ban him from driving.  Therefore, unless there was a defence on the prosecution papers he would have to plead guilty.

The other solicitor told him that she could certainly prove that the breath test machine at the police station was faulty and thus its evidence unreliable – odds were given of a 70% likelihood of acquittal.  Let us just think about that for a minute.  Without seeing any evidence, or hearing an account of the machine operating unusually, this person is very sure that she can prove the machine was faulty?  That seems a little unlikely to me.  Maybe, she has had another case where the intoximeter was proven to be faulty?  It takes a typical case between 3 to 6 months to get from arrest to trial – this can be much longer where expert evidence is required, as it would be in a faulty intoximeter case.  What are the chances that the police would not have had the faulty intoximeter repaired in that time?  I’d suggest they are pretty low.

Is the solicitor giving her potential client the best possible advice and thus acting in his best interests?  I would suggest that sending somebody on a very expensive fishing trip (she quoted at least £10,000, although if he lost he’d have to pick up the prosecution tab as well) is probably not in the client’s best interests.  Sure if they want to give it a go and don’t care about the money after hearing proper advice then it’s up to them but I find the idea of sending your client down that path merely to line your own pockets to be a very unpleasant act.

I am coming across this sort of nonsense more and more often as firms panic in their rush to pick up work.  It’s quite annoying when you know that you are losing business to somebody who will simply fleece the client for as much as they can, which gives all solicitors, including me, a bad name.

UPDATE: 30th April 2014

It is now exactly 23-hours since I published this blog post and I've received a call from another client who chose to instruct me because "you sound honest but the other solicitor I spoke to was promising things that sounded too good to be true" (he may have said "sounded like fantasy" - I wasn't making a precise note).

It's called professionalism people.

Wednesday, 16 April 2014

Do I need a solicitor?

People often call me after they've been charged with drink driving to ask for legal advice... makes sense, I suppose.  The one question I get asked the most (except "how much is this going to cost me?") is "Do I need a solicitor?"  Now, I'm an honest sort of chap so my answer is always "yes"... I mean unless you happen to have the expertise to analyse the prosecution evidence, look for holes in it and devise an appropriate defence or put together a well crafted speech in mitigation that is.

A few months ago a lady contacted me looking for some advice and somebody to help her minimise her sentence after she was charged with being drunk in charge of a motor vehicle.  Convinced she had no defence all she wanted to do was plead guilty and take the punishment that was coming her way.

When I spoke to her and looked at the evidence I quickly realised that she had been in a private car park that did not fall within the legal definition of either a road or a public place.  I took a visit to the scene of her arrest, photographed the area, took statements and evidence from her, her partner, the owner of the land and the company controlling the car park.  We put together a defence bundle that included the statements, photographs, architects plans for the whole estate and various documents proving ownership and layout of the car park.

Sure as night follows day, the prosecution looked at the overwhelming case against them, concluded that they could not possibly prove the allegation and discontinued the prosecution.

This lady had been about to take the driving ban and a community order requiring her to complete unpaid work (given her high reading that was the inevitable outcome).  Instead, she took legal advice from somebody who understands this complex area of law and is now still free to drive on her clean licence.

One of the reasons I gave my up legal aid practice was that with funding so low it had become impossible to properly prepare cases for trial - many firms I knew were operating with very high numbers of unqualified "lawyers" preparing cases with little or no supervision from experienced solicitors.  In order to maximise profits, many solicitors were taking up trial advocacy despite having little or no desire to do that work. 

The case I described above involved three meetings with the client, a visit to the scene of the alleged crime, hours considering the evidence of both the prosecution and defence and more time spent preparing submissions to the prosecution asking them to abandon their case.  Currently, the standard fee for this case would be £279.45, which includes all court appearances, preparation, travel, waiting and the recent 8.75% reduction imposed by central government.  I want to be very clear about this: undertaking this level of work for that fee would make this a loss making case for any solicitor.  It is simply not possible to conduct the work required for that fee!  So, would any sensible businessman or woman repeatedly carry out work that loses them money?  The answer has to be no they would not because to do so will put them out of business.  So, could you expect your case to be properly prepared under legal aid?  I'll leave that to you to decide.

That £279.45 fee is due to be cut again to £254 soon... can a firm make a profit on that case?  Yes, they simply adopt the pile 'em high, sell 'em cheap method of business, a bit like CostCo does.  You simply take the case in, stick it on the pile doing the absolute minimum work on it - hope the client obtains the necessary evidence for you, send it off to trial and hope for the best.  Even on that method I suspect profits would be slim.

I think my point is two-fold.  First, legal aid cuts affect everyone because they drive down the quality of justice that you can expect to receive in this country if you find yourself accused of a crime you did not commit.  Second, if you're in trouble for a motoring offence then contact me!

Sunday, 23 February 2014

Criminals to pay £600 toward cost of prosecution

Chris Grayling MP, our Lord Chancellor and Minister for Justice has announced that people convicted of crimes in the criminal courts (i.e. criminals) will be made to pay £600 each towards the cost of prosecuting them.

It’s a policy designed to garner headlines and popularity in the right wing press (leadership bid in the future I wonder) rather than one actually intended to bring in any money… at least I hope that’s what it is otherwise Mr Grayling really is as badly informed about the Criminal Justice System as everybody says.

The policy is wrong for two main reasons.  First, if you believe that criminals should pay the costs of bringing the case against them then why not charge them the actual costs of doing that rather than an arbitrary £600?  A simple shoplifting may well cost less to bring to court whereas a fraud could cost thousands of times that £600 figure.  So, from an ideological stand point it makes no sense.

At this point it’s worth declaring my personal opinion, which is that if a criminal has the money to pay the full costs against them then I believe that they should be charged the full cost and not an arbitrary lower or higher figure.  The point there really is if they have the money.  “You can’t get blood out of a stone” is a very true saying and brings me neatly onto my next reason for saying that this policy is a headline generator not a serious policy.

A quick Google search shows that the courts are already imposing fines, costs and compensation on criminals that will simply never be paid back.  In 2010, that figure stood at£1.3bn.  In October 2012, Francis Maud MPset out a plan to collect on the £20bn of money owed by individuals to thegovernment – the majority of that money has nothing to do with the courts.  So far as I am aware nothing has happened and there are still over a billion pounds of unpaid court fines, costs, etc owing.  In fact, so little has changed that the MOJ (Grayling’s own Ministry) wrote off £75M of unpaid fines inOctober 2013, which despite Mr Maud’s new collection strategy is a 20% increase in debts written off on the previous year and 50% on the year before that.

Currently, a guilty plea will attract a costs order of £85 and a conviction following trial can range from around £285 - £600 depending on a lot of factors.  The Government can’t collect that.  How will increasing the costs charged solve that problem?

As a final point, it’s worth contrasting this announcement with costs rules, introduced by this Government, that prevents those wrongly prosecuted (in other words the innocent) from reclaiming their costs in proving their innocence from the Government that falsely accused them.

Friday, 17 January 2014

To plead or not to plead

This has nothing to do with the post but I thought it was funny
From the National Office of Importance

I represented a defendant today who was accused of being drunk in charge of a motor vehicle, which is essentially an offence the police can charge where they cannot prove that somebody has driven or is about to drive.

The scope of the offence is very wide, essentially you are guilty if you are a) over the drink driving limit; and b) in charge of a motor vehicle.  So, in theory if you have a few drinkies at home and your car is parked outside you could be guilty of a drink driving offence.  Obviously this would be both silly and unjust, so there is a defence built into the statute that you are not guilty if there is no likelihood of you driving the vehicle while over the drink driving limit.

In today’s case, this defence was wide open to my client.  I won’t bore you with the full details but essentially the client states that he was out drinking with his girlfriend and friends.  She let slip that she had been sleeping with somebody else behind his back and in a drunken fit of emotion he returned to his car, punched it once or twice then sat in it smoking for about 15-20 minutes after which time the police arrived and arrested him for being drunk in charge.  Police attended as somebody saw him punch the car and calling the police thinking he was a vandal.

Now, whether you believe him or not is irrelevant because we don’t know if it’s true or not; all we know is that he insists that it is the truth and that his account gives him a defence.

He decided to plead guilty, not because he accepts that he was going to drive but because he took a commercial decision that the cost of fighting and winning the trial was greater than the cost of pleading guilty at the earliest opportunity. 

Under the old system, a defendant who wins his trial would have had all of his reasonably incurred costs reimbursed from central funds (which are the Government’s pot of cash for paying out legal costs in cases they lose a case).  The new system; however, limits the amount of money that a defendant who is acquitted of all criminal allegations can expect to get back.

In this case, the defendant decided that the risk of not getting his money back following a successful trial outweighed the consequences of pleading guilty, losing his driving licence for up to six-months and accepting his first criminal conviction.

I can’t be the only one who thinks that the purpose of the criminal justice system is, as the Overriding Objective in the Criminal Procedure Rules says, to convict the guilty and acquit the innocent.  It’s one thing for a business to make commercial decisions whether to defend a case against themselves in the civil courts entirely on the money but it is not how the criminal courts should be run… not in my opinion at least.

Tuesday, 14 January 2014

What don't you like about human rights?

Viscount Rothermere (then owner of Daily Mail and
Daily Mirror) meets Adolf Hitler

The past few weeks have been mildly interesting if you like reading about human rights and why we shouldn’t have them.  The idea of people arguing that they shouldn’t be entitled to human rights always reminds me of a friend of mine who hates the idea of consumer rights, not because he runs a business but on principle; not that he lets it stop him exercising his consumer rights when it suits him.

My friend also hates human rights.  He doesn’t dislike them or disagree with them, he hates them.  Like many people who despise the notion of human rights he is also passionately anti-Europe (although unlike most people he understands that the European Union has nothing to do with the European Convention on Human Rights).  Also like most people who hate human rights, my friend can’t say which of the individual rights he would like done away with (and he does know them all being a law graduate from King’s College London and the University of Law).

The rights and freedoms protected by the ECHR are:
1.       Right to life;
2.       Prohibition of torture;
3.       Prohibition of slavery and forced labour;
4.       Right to liberty and security;
5.       Right to a fair trial;
6.       No punishment without law;
7.       Right to respect for private and family life;
8.       Freedom of thought, conscience and religion;
9.       Freedom of expression;
10.   Freedom of assembly and association;
11.   Right to marry;
12.   Right to an effective remedy (for breach of ECHR); and
13.   Prohibition of discrimination (so far as enjoyment of rights are concerned).

When considering whether we agree or disagree with anything in law it’s always worth putting yourself or a loved one in the position of the parties involved.  So, imagine which rights you’d happily be denied to you or your children?  Would you deny your son the right to life?  Would you deny your daughter the freedom from torture?  Maybe you’ll happily see her sold into slavery, provided she’s neither tortured nor killed?  Does the local bobby think your son is a bit of a chav?  Maybe you’d be happy to do away with the rights to liberty and a fair trial so the police could lock him up indefinitely without trial?  No punishment without law means an act has to have been a crime at the time you did it for you to be convicted of a crime.  Let’s imagine you invest in a pension fund that in turn invests in nuclear power stations.  The Greens come to power (okay I know this is unlikely) and pass a law imprisoning anybody who has, directly or indirectly, invested in nuclear power, does that sound fair?  I could go on for quite a while in this way.

The most common response to “what right would you do without?” is “I don’t mind the rights just the way they are implemented by judges.”  For the most part this is because the person hasn’t understood the law, the facts or both – or to put it another way, because a newspaper or politician with an agenda has deliberately misreported the case.  As examples, I give you Mrs May and the case where she claimed a judge had allowed somebody to remain in the UK because he owned a cat when in fact the judge had noted the man owned a cat and said that it had nothing to do with his decision.  What about Chris Grayling our Justice Secretary who last year teamed up with the Daily Mail to decry the European Union’s Charter of Fundamental Rights – a document that does not apply to the UK in any event – which he claimed created 54 “new” rights.  In fact it’s a restatement of the ECHR for the most part and a small handful of “new” rights that are, in any case almost all already the law in the UK.  The "new" laws require doctors to obtain consent before conducting medical procedures and ban child labour.

Here’s a good example of some mis-leading coverage from the Daily Mail.  Here’s a couple of highlights.  They claim that the UK has lost 202 cases before the European Court of Human Rights, which is true, although they neglect to point out that the ECtHR has considered 13,515 cases against the UK.  In the original story, the Mail claimed that £4.4M had been paid out in compensation to criminals where in fact they later admitted that the total compensation ordered by the ECtHR is only £1.7M and that this money went to a range of claimants, not just criminals.  Also, the Mail has lumped this story together with two apparently unrelated ones about gas prices and the former Director of Public Prosecution’s incorrect assessment of the law on abortion.  I’d suggest the only reason this was done is to provide a misleading impression to readers and generate further hatred of the human rights that were created after the second world war to protect us all… incidentally, you might recall that the Daily Mail was the newspaper that supported Adolf Hitler and his Nazi Party as he committed the very crimes that led to the creation of modern human rights!

In the past couple of weeks I’ve read some interesting new reasons why we should do away with human rights, the gist of which seems to be that a) Hitler would probably have ignored them anyway so there's no point in trying to have laws that might have stopped him; and b) nations outside of the west do not agree with our western concept of human rights and so they are doomed.  Interestingly, I’ve yet to see any of these people suggest an alternative that they would approve of and that is acceptable to both the west and the east (and I suppose the north and the south).

Human rights may well be the modern morality for a world rapidly removed from the morality of religion.  I am happy to consider some alternative to human rights but I’ve yet to see one that is more acceptable to everybody than what we have now.  Having said that, I do have one alternative: I would be happy to become your leader and I will promise to ensure that everyone is nice to each other and not to kill too many of you when you displease me.  I could be given the title Lord Protector in Perpetuity.  I think I’d make a good leader of the world and moral compass for you all.