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. (http://www.acpo.police.uk/documents/reports/2012/201210PolicingintheUKFinal.pdf)  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?