You're In Trouble Now Son

I recently got called out to a Police Station where I represented a father and his son for completely unrelated incidents.

As I was dealing with the son's case I bumped in to the father in the custody suite. I already knew the father from my previous dealings with him. He started to explain to me how disappointed he was that his son had been arrested. I found this rather ironic because the son had never been arrested before and the father had a list of convictions that would probably stretch for several metres.

After dealing with the interview for the son I had to wait for the Police to make a decision on the case so I went on to deal with the father's case. The father was bailed out of the Police Station before the son, and before the son was released the father told the Custody Sergeant that he should not release the son so that he could get a taste of what being in trouble was really about. The father then turned to me and said that he will soon make an appointment to come and see me about a case he is currently on bail for!

In The News

Diary of a Criminal Solicitor was mentioned in The Times today. A feature appeared about legal blogs and this blog was given a few inches. You can read the article in full by following this link.

What surprised me about the article was that it appeared on page 5 of The Times. I have been out and purchased my copy of The Times and I shall keep the paper copy of the article safe and sound to show people in the years to come.

I Am Going To Arrest You Even Though I Do Not Have A Power Of Arrest

My office received a telephone call from a person today asking if we could attend at the Police Station with them as they had been asked to attend for an interview about an alleged assault. I went off to the Police Station to deal with the matter.

One thing that really annoyed me about this particular Police Station attendance was that whilst I was en route on a train far under the streets of London the Police decided that there was not enough room in one custody suite to interview my Client so they decided they would take my Client to another Police Station! I only found out about the change of venue as I arrived at the first Police Station!

I eventually got to the Police Station and then discovered that my Client had been arrested under section 25 of the Police and Criminal Evidence Act 1984. This is what the current version of s. 25 states:

25 General arrest conditions
(1) Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied.

(2) In this section the relevant person means any person whom the constable has reasonable grounds to suspect of having committed or having attempted to commit the offence or of being in the course of committing or attempting to commit it.

(3) The general arrest conditions are
(a) that the name of the relevant person is unknown to, and cannot be readily ascertained by, the constable;
(b) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name;
(c) that
(i) the relevant person has failed to furnish a satisfactory address for service; or
(ii) the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service;
(d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency; or
(v) causing an unlawful obstruction of the highway;
(e) that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person.

(4) For the purposes of subsection (3) above an address is a satisfactory address for service if it appears to the constable
(a) that the relevant person will be at it for a sufficiently long period for it to be possible to serve him with a summons; or
(b) that some other person specified by the relevant person will accept service of a summons for the relevant person at it.

(5) Nothing in subsection (3)(d) above authorises the arrest of a person under sub-paragraph (iv) of that paragraph except where members of the public going about their normal business cannot reasonably be expected to avoid the person to be arrested.

(6) This section shall not prejudice any power of arrest conferred apart from this section.

My Client was being investigated for an allegation of common assault, and until 1st January 2006 the Police generally cannot arrest a person for an allegation of common assault that has already taken place, and where the incident is no longer going on. As soon as I discovered that my Client had been arrested under this flimsy provision I kicked off in the custody suite. My Client had been contacted by telephone and had originally attended at the Police Station as a volunteer. The Ofdealingelaing with the case relied upon s. 25(3)(a) to (c) to justify the arrest. My Client had been compliant at all times with the Officer nad had furnished satisfactory informtion about their address and name. I told the Officer that he was abusing his powers and I complained to the Custody Sergeant too - of course they ignored my representations and agreed with each other that an arrest was justified under s. 25.

There is little point taking this issue further. The Serious Organised Crime and Police Act 2005 and other legislation has changed the Police power of arrest from a list of specific offences that carry a power of arrest to a general power of arrest. Code G of the Police and Evidence Act 1984 Codes of Practice has now created a new power of arrest:

A lawful arrest requires two elements:

A persons involvement or suspected involvement or attempted involvement in the
commission of a criminal offence;

AND

Reasonable grounds for believing that the persons arrest is necessary.

If I had been successful in arguing my point with the Police today I may well have advised my Client to leave the Police Station before an interview took place - but if we had walked out the Police may well have decided to pay my Client a visit after 00.01 am on 1st January 2006 to exercise their new power of arrest.

Christmas Is Coming

I was the Police Station Duty Solicitor for a busy East London scheme last night. My rota shift started at 11.00 pm and ran through to 7.00 am. I was expecting a flurry of phone calls and a number of interviews. Unfortunately I only received a few phone calls for fairly minor matters that did not require an attendance at the Police Station. I did phone the Duty Solicitor Call Centre to check that I was supposed to be on call, and they confirmed that I was on duty.

It seems that as Christmas is coming and the criminal element of society has decided to take a break. Christmas is generally a quiet period for crime apart from the obvious matters such as burglaries to clear out houses full of presents, or the domestic violence that ensues after a large doses of alcohol and food. Christmas for people arrested just before Christmas often involves a flurry of activity to get them out of prison either on bail or on licence so that they can be at home over Christmas.

The Christmas period is often quiet. There are always people arrested on festive days, and some are even detained over Christmas until the first available Court sits to consider bail. I spent Christmas Eve last year at the Police Station on a murder case, I was extremely happy when the Police decided not to do a pointless video identification parade that would have run up to about midnight. I managed to get home about 9 pm and start Christmas.

I was due to be the Police Station Duty Solicitor for a North London scheme between 11.00 pm on Christmas Eve and 7.00 am on Christmas Day this year. Thankfully I found a generous and very kind solicitor who agreed to swap my slot.

I am hoping that Christmas is a quiet period for me, I have probably jinxed myself now.

Court Strike

Staff at Her Majesty's Court Service went on strike yesterday. Chaos was caused to my local Magistrates Courts. Quite simply there was a lack of Clerks to run Courts, and there was a distinct lack of staff to run the Courts in terms of administration and list calling.

In Thames Magistrates Court they were running about four Courts with only three Clerks.

The Court staff are striking for a wage increase good luck to them. The public seems to have a perception that people who work within the criminal justice system do not deserve wage increaes because they service criminals.

Listening to the radio today I heard several interviews. Apparently the Court staff are now on a 'go-slow' and will only work 37 hours per week, they will do no more work. If Her Majesty's Court Service staff are now on a 'go-slow' then the system is going to come to a swift halt. Only last week I was at Thames Magistrates Court for an afternoon hearing. There were about 15 cases from the morning list that had not been dealt with in the particular Court that I had my afternoon appearance in. After about an hour the bench retired and came back 30 minutes later announcing that if anyone was on bail and was due to be heard in that Court then their case had been adjourned and they would receive a new Court date in the post at some point in the future.

Video Link Court Appearances

A case I have been dealing with was concluded at the Magistrates Court today. A rough history of the case is that my Client appeared in custody and was refused bail. He should have appeared the following week over a video link from prison to make a second bail application. It took three attempts on consecutive days before his image was successfully projected in to the Court for his appearance to take place. Then the case was adjourned to be committed to the Crown Court. On the next appearance the Crown Prosecution Service failed to send a Prosecutor to Court to deal with the case! When someone from the CPS did attend at Court the case was adjourned to the next week.

Today the committal took place despite a Court strike. There should have been a 9.00 am conference over the video link. This was not possible due to staff shortages. The case went ahead after several delays and eventually the case was committed to the Crown Court.

I billed the file in the afternoon and added together the times that had basically been wasted by other agencies. There was a total of 10 hours waiting, and over 4 hours worth of travel. If this case had been without the delays waiting would have been reduced to less than an hour, travel would have been about 2 hours maximum.

Why am I ranting about this case? When they brought in video link hearings they were designed to reduce delays, and increase the volume of cases dealt with. Video link hearings are scheduled so that cases have specific time slots. Due to a combination of factors in this case I now have a case that the Legal Services Commission would probably enjoy to audit and then suggest that I had over claimed due to excessive travel and waiting times!

The Attorney General Apologises

I sometimes get very wound up by very small issues. Over the past few weeks I have been rather upset by the Attorney General's office misquoting one of my cases as being a shambolic state of affairs where defence solicitors took advantage of 'the system' to bring a case to it's knees - have a look here and here about my ramblings.

I have now heard back from the Attorney General's office. You can have a look at what they said in full by downloading this .pdf document. The important part of the letter states, "The error in the accompanying press release was the fault of the CPS, who has notified this office that it had wrongly attributed the facts of a different case to that of your client. We have therefore arranged for the immediate amendment of the press release, and apologise to you for the confusion."

I am now happy that this little misunderstanding has been resolved.

Section 30 of the Theft Act 1968

I had a trial a few weeks ago where the case against my Client was that he had gone round to his ex-wife's address and had an argument with her on her doorstep. The argument progressed and the wife shut the door. My Client wanted to continue the argument and began to bang on a glass window in the door. He kept banging until his arm went through the window causing damage to the property and damage to his arm. My Client was arrested at the scene and charged with, amongst other things, criminal damage.

When I met this Client at Court he told me that he paid for half of the mortgage on the property, he was not particularly happy about the concept of being held responsible for damaging property that was jointly owned by him. I sat discussing his case and a bizarre thought came in to my mind. I thought about section 30 of the Theft Act 1968. I am not sure where this thought came from but I did recall that in order to be prosecuted for damaging marital property the Director of Public Prosecutions has to consent to the prosecution. I have spent many boring hours reading text books and this was one occasion where my reading had actually been worth it! I advised my Client that he could plead not guilty and hope that the CPS did not obtain the proper consent to prosecute before his trial started. My Client liked the advice knowing full well that if the CPS did obtain consent then he would be guilty by default.

The weeks passed by waiting for the trial and eventually we got to the trial date. I arrived at Court. I discovered that the wife had attended and that the CPS were ready to proceed to trial. I again advised my Client that he could only win on a technicality, and that if the CPS did have consent for his prosecution then he was guilty on the basis of his own admissions in interview. My Client was clear in his instructions, he wanted me to pursue the s. 30 Theft Act 1968 point.

The trial started, and just before the wife was called to give evidence I leant over to the Prosecutor and asked if they had the consent of the Director of Public Prosecutions to prosecute the case. The Prosecutor turned to me and said that it was not necessary as my Client had no interest in the wife's property. I cross examined the wife and she accepted that my client had been paying half of the mortgage - so I had now established that my Client had an interest in the property.

The CPS closed their case and I made a submission that there was no case to answer as there was no consent to prosecute a case where this s. 30 point applied, therefore the proceedings were a nullity. The Prosecutor stood up and asked for a short adjournment to check their file. They came back after 10 minutes and said that they must have consent to prosecute this case. Although there was no positive endorsement on the file to say that consent had been considered and given the Prosecutor claimed that consent must have been given. Despite my objections the Magistrates sided with the Prosecutor! We then broke for lunch.

After lunch the Prosecutor came back in to Court and then retracted their point on consent and stated that they could not be sure if consent had been given therefore they would offer no evidence on the matter of criminal damage. Success. My Client was then cleared of all remaining matters and he walked out of Court with verdicts of not guilty.

There are technical and complicated laws in this land, they rarely trouble the criminal justice system. But where there is a technical loophole and the case is dealt with in the Magistrates Court you can be sure that the Crown Prosecution Service will not have considered the issue important enough to deal with.

Before people start posting messages that I am getting guilty people off of the hook I will remind you that I do my job and the Crown Prosecution Service (or whomever may be prosecuting my Client) is do their job. If a generous salary from the tax payer is not enough for the Prosecutor to do their job properly then complain to the government. The prosecution generally have infinitely more resources than I, or the firm that I work for, do, and if they cannot see these loopholes coming they should not be doing their jobs. In this particular case this loophole was easy enough to see from the interview and do you know what virtually anyone at the Crown Prosecution Service could have done to get the Director of Public Prosecution's consent to prosecute this case? They only had to fill out a form and exercise their delegated powers to consent to the prosecution themselves!

More Rubbish

I made a post a few weeks ago about what I would call very bad misinformation on the Attorney General's web site that referred to a case that I had been involved in. The press release that contained this misinformation was removed from the Attorney General's web site when I made a formal complaint about the content of the press release. I have been told many times by the Secretary to the Attorney General that my complaint is being dealt with and that I will receive a response soon - so far I have had nothing but empty promises.

Today I noticed that a speech delivered on 4th October 2005 by the Attorney General has appeared on the web site. Page 26 of this speech makes the same references to the case that were in the press release. Either this complaint has been resolved and my representations have been ignored, or whoever publishes the material on the Attorney General's web site is being somewhat foolish.

I shall make some phone calls today to see why the complaint has not been resolved and why the speech has been posted with the same misinformation in in.

Technology

On Tuesday I went to Court for a video link hearing. My Client had been refused bail the week before but was due to appear in Court via a video link for a second bail application. Video link hearings are always a little bit strange because the Client appears on a television screen and is never physically present in Court. The thing that I find strange about the whole affair is that the client appears on the television screen sitting down with a sign, usually to their right, that says HMP Whatever - they look like news presenters they way that they are arranged.

I got to Court nice and early to have a private conference over the video link with my Client. Unfortunately the video link equipment was not working. After about an hour had passed the Usher told me another revelation - my Client had been lost in the prison system and he was not at the prison he should have been. It took about another hour to locate my Client, and it turned out that he was gone to a far flung South London prison instead of the usual remand prison when he had been refused bail last week.

My whole morning had been a waste of time and the case was simply adjourned to the next day. You would think with the modern technology at our disposal video link hearings would work without any problems?

I Can Shout Louder Than You

I had to deal with the trial from hell today. I attended at one of my local Magistrates Courts to deal with, amongst other things, an assault case where the Client had a problem with alcohol and had failed to provide any instructions prior to the trial date.

When I arrived at 9.30 am I hoped that the Client would not attend at Court because his case was so hopeless. After a series of phone calls I started to think that my client was not coming to Court but then he staggered in the door at about 10.35 am. When I introduced myself (I had not met the Client before) I was immediately greeted with a mouthful of verbal abuse where the Client was demanding to see his lawyer - after several attempts he finally worked out that I was in fact his solicitor.

I took the Client to an interview room and explained the matters for which he was being prosecuted, this also provoked the Client to demand to see his lawyer? Confused? I was too! Everytime I mentioned the charges my Client would shout out, "Are you not listening to me man, not guilty". The Client could not progress past the point of saying not guilty to explain why he was not guilty. Repeatedly through my delightful conversations with my Client he would shout, "Are you listening man?" to which I would reply, "Yes Mr. X, I am listening to your every word. That is the ?th time you have said that. Please do explain your case to me as so far you have provided no instructions at all". After 20 minutes of this experience I told my Client that due to the aggressive behaviour that he was displaying towards me I was going to leave the room and consider if I was going to continue to represent him. I was then called in to Court and told the district Judge that I was minded to withdraw from the case, the District Judge stated that he could not compel me to stay but did request that I remain to assist the Court. I do not know why but I remained.

After a further 20 minute shouting match with my Client I finally had some instructions. I discovered that if I shouted louder than my Client he was forced to listen to me, so I spent much of my time obtaining instructions by aggressively shouting at my Client.

The trial turned out to be an absolute nightmare. The Client would not contain himself and was removed from the Court for contempt of Court before lunchtime. I then represented the Client in his absence. After lunch the District Judge agreed to allow the Client to remain in the Court for the remainder of the hearing, but after about 15 minutes the Client because abusive towards the witnesses and was removed again. Eventually we got round to the Client giving evidence from the dock.

The Client was amazingly poor when giving evidence. He announced to the world that he had no convictions for assaulting Police Officers despite his antecedents showing four such convictions! He was crossed examined on that point and when the District Judge explained the reasons behind his findings of fact he commented that the Client was clearly a liar.

To my credit I managed to get one of the four charges dismissed on the basis that the prosecution evidence was weak, and for the three other matters the District Judge found the Client guilty but on a limited basis. This was a case where I expected to, and did, go down in flames.

To top the afternoon off the Client was remanded in custody, having previously been on bail, due to his late arrival.

This is another notable 'drunk' case where I have had no choice but to proceed to trial with a drunk Client. These cases always go wrong because the Client is always so unpredictable.

Are You Counsel?

I went off to a Magistrates Court that is a little off my usual path.

I spoke with the Prosecutor first of all about the case. As the case was listed for a first appearance today I collected the advance information from the Prosecutor who then wanted to know what firm of solicitors was representing the Client. The conversation went a little like this:

Her: Who instructs you?
Me: I do.
Her: Sorry?
Me: I am dealing with the case.
Her: Are you Counsel?
No: I am a solicitor.
Her: Sorry.

After finding and speaking to my Client I spoke with the Usher to let her know that my Client and I had attended at Court and that her case was ready to be called on. The conversation went like this:

Me: Hello, I am here representing Mrs X.
Her: Is your Client here?
Me: Yes.
Her: Are you ready to be called on.
Me: Yes.
Her: Who has instructed you?
Me: No, I am a solicitor.
Her: Oh sorry, you look like Counsel.

At some point during the morning I was approached by one of the duty solicitors local to the Court I was at, they spoke with me:

Him: Hello, what are you doing here.
Me: I am just waiting to be called on for a first appearance.
Him: I don't know if you can help me. I am the duty solicitor today and I have a Client who has a co-defendant. They are both in custody and the co-defendant has legal aid with a firm but they have not turned up. Would you accept a brief from the solicitors to represent the other chap?
Me: Erm, I'm not Counsel.
Him: Sorry, you look like Counsel.

It turned out the reason people kept mistaking me for a barrister was because I was smartly dressed in a pin striped suit. I dress smartly every day and do think that there are some shabbily dressed solicitors out there who have clearly grown to be too comfortable in their usual surroundings and dress pretty poorly. I did not mind being mistaken for Counsel on the basis that I was well dressed but I do think that people have the wrong idea when they suggest that in the general heirachy of things that barristers come above solicitors in terms of dress sense!

Hacked

I had an unpleasant experience over the weekend trying to restore a computer that had been hacked. As far as I could tell a hacker from Holland had exploited a hole in my usually tight firewall and destroyed my mail server. I did consider investigating the matter further by exploring security logs, trying to trace IP address and the like - but what's the point?

The Computer Misuse Act 1990 has been somewhat battered by a recent decision made by District Judge Kenneth Grant. Although I may be able to use the Computer Misuse Act 1990 to deal with my case I am fairly sure that the legislation is so outdated that further holes will be punched in it to prevent further convictions. I have been a little surprised by the media coverage that this case has received, afterall it was a first instance decision of a Magistrates Court.

The Chinese Government Comes To Town

I spoke with a colleague recently whom I worked with when I was completing my training contract. I usually speak with this particular person about once a week and we often discuss what we have both been doing during the week. When I spoke to this colleague I asked him if he had been up to anything interesting and he told me that he had been to Bow Street Magistrates Court to apply for an arrest warrant for a Chinese Minister. I found this to be rather surprising as the usual reply would have been that he had been stuck at a Magistrates Court, or had spent half the night at the Police Station.

Our conversation continued and he explained that a request had been made at his office to apply for an arrest warrant, and the partners at his firm thought it would be high profile pro bono work worth doing. I said to him, "What on earth are you doing making frivolous applications like that?" My colleague did not believe in the merits of the application but said that it had been a pleasant day out of the office as the application was made in the morning and the District Judge that heard the application delivered a reasoned judgment at 4.00 pm that day. He was even interviewed by Channel 4 news, but unfortunately they did not play the footage of the interview.

CDS Direct Rumours

I talked a few days ago about the new pilot scheme being run by the Legal Services Commission to provide telephone advice to people detained at the Police Station in certain circumstances called CDS Direct. During the past week I have been listening to comments made by solicitors across the country and it seems that the CDS Direct pilot is not running as smoothly as it should be. All of my comments here are based on rumours or accounts given to me by colleagues - I have yet to have my own experience with CDS Direct. Here are some of the things that I have heard:

1. CDS Direct employs 15 'advisors', so at any one time there are up to 5 advisors at the CDS Direct call centre. This means that the Legal Services Commission have replaced the services of hundreds of solicitors available to deal with telephone advice calls at any point in the day with 5 advisors. It seems that calls that should be dealt with by CDS Direct are being put through to solicitors in the way they were prior to the CDS Direct pilot because the CDS Direct call centre is under staffed. On this same point the man who has trained the advisors is apparently Tony Edwards from the solicitors firm TV Edwards. A colleague has stated that Mr. Edwards advice to the advisors was that they must complete their telephone advice call and complete their notes before moving on to the next call and if that means not picking up an incoming call then so be it.
2. Of all the Custody Sergeants asked none are aware of the CDS Direct pilot. This snap shot view has been obtained by solicitors asking in an ad hoc way when they attend at the Police Station.
3. CDS Direct are not sticking to their operational procedures as they are advising people for cases that fall outside of their remit.
4. The Legal Services Commission press office (it has been suggested that Richard Shand has made this comment) is stating that the CDS Direct pilot has dealt with all eligible cases. 90% Being dealt with (i.e. advice given) within 15 minutes, 99% within 30 minutes (these times are less than the target times set down). The experiences of solicitors attending at the Police Station, and other solicitors picking up calls because CDS Direct has not dealt with the call for some reason, suggests that the comment by the Legal Services Commission press office may not be correct.

Billing Time Again

Billing time has come round again. It is that time of the month when the management in my firm tell all of the fee earners to bill all of the files that are possible to bill.

I do not mind billing. It is a time consuming activity but it is nice to understand how my hard work can translate in to money for my employer.

An e-mail was sent to me today suggesting that I should perhaps bill a little bit more this month. It is exactly this kind of attitude that has driven me from the firm I currently work for to find employment elsewhere. I am being told to bill more, was the £50,000 worth of bills I submitted last month not enough? I had a glut of Crown Court cases finish last month which hopefully will be paid in the next few months. I am going to bill no where near the £50,000 of last month, the firm will probably get something like £10,000 out of me for this month. The management fails to understand that to earn large fees on Crown Court cases I have to ease off the Police Station and Magistrates Court work.

Never mind, I shall submit my billing and keep on smiling knowing that my days are numbered as I start my new job in the new year.

Why Call It CDS Direct?

A pilot being run by the Legal Services Commission will begin on 31st October 2005. The pilot is designed to examine whether it is feasible for legal advice to be given by a call centre in less serious cases to people arrested and detained at the Police Station.

The Legal Services Commission has called it's call centre CDS Direct. I strongly object to this name as it is misleading.

CDS Direct stands for Criminal Defence Service Direct. Solicitors firms who do legally aided criminal defence work form the Criminal Defence Service. The Legal Services Commission is also running a pilot called the Public Defender Service which has a handful of offices dotted around the country. These offices are staffed by employees who are paid by the Legal Services Commission. They are public defenders.

Although the Public Defender Services comes under the umbrella of the Criminal Defence Service the vast majority of the CDS is made up of firms who hold a General Criminal Contract - people who are paid legal aid fees instead of being paid directly by the Legal Services Commission.

Most solicitors in private practice objected to the idea of the CDS Direct Pilot. The Legal Services Commission ignored our objections and decided to set up the pilot anyway. When the Legal Services Commission realised that they would not be able to employ duty solicitors from private practice to work in the call centre on a part time basis because it would conflict with their existing work commitments members of the PDS were drafted in. When the Legal Services Commission realised that they may be breaking the rules by using non-solicitors to advise detained people over the telephone where the detained people had been asked if they wanted to speak to a solicitor the LSC simply changed the rules.

I do not know why the Legal Services Commission are still calling this pilot CDS Direct. It perhaps should be called PDS Direct or LSC Direct because it has more to do with those organisations than it does with the majority of the Criminal Defence Service.

So if you are arrested after 31st October 2005 for a very simple matter where legal representatives usually only give legal advice over the telephone your advice will come from the CDS Direct call centre. You will be advised by a person who holds a qualification called the Police Station Qualification but they may or may not be a solicitor. You will probably only get to speak to a solicitor at the CDS Direct call centre if you specifically ask for one.

How Rude

I was the Police Station Duty Solicitor for a busy scheme on Saturday afternoon. Between the hours of 3pm and 11pm I had 12 cases referred to me. One of the cases was a female who had been accused of harassment.

It was slightly problematic contacting the Police Station after 9.30pm because 15 people were brought in for football violence following the Arsenal v Tottenham match. As the Police in the custody suite seemed to ignore the phone when I tried to phone them I had to rely on the Police phoning me.

I got a call about this female about 10.30 pm. The Officer told me that he was going to conduct the interview in the morning. I explained that I would speak to the Client and see whether she opposed that course of action. I then spoke to the Client and she was rather feisty straight away. At one point our conversation went like this:

Her: Are you coming down to the Police Station now?
Me: No. You are receiving free legal advice and assistance under legal aid. The government has seen fit to refuse to pay me to do work that is deemed unnecessary and at present the Officer in the case cannot provide me with disclosure, he has further investigations to carry out - therefore legal aid would not extend to me coming to see you unless there is a real issue to be dealt with.
Her: What?
Me: Are you a vulnerable person with mental health or learning difficulties?
Her: No.
Me: Are you a juvenile?
Her: No.
Me: Have the Police mistreated you?
Her: No, but I am still here.
Me: The Officer is not going to be in a position to interview you tonight. I need to discuss...
Her: [Shouting in the background] He aint coming down, what f***ing good is that. He can f*** off.
Me: Hello, hello... Is anyone there?

I tried to phone the Police Station back several times but they simply would not pick up the telephone. Due to the comments made by the Client I considered her to have dispensed with my services. I do not need to put up with comments like that. The Client was obviously upset that they were going to spend the night in a Police cell but if they were not going to listen to what I was going to say what was the point in acting for the Client?

The next day I received another phone call about the Client. The Police were ready to interview and the Client had asked for me to attend at the Police Station. I told the Police that she had dispensed with my services last night, so she would have to find another solicitor. The clever Client kicking off complaining about having to stay at the Police Station had ensured that she would be at the Police Station even longer as she had to find another solicitor. The moral to this story is do not bite the hand that feeds you .i.e. be nice to your solicitor.

Absconding From Prison

I represented a Client at a Magistrates Court recently who had been charged with offences at the Police Station and who had been taken to Court in custody. The Client was accused of fairly serious crimes, but his list of previous convictions was good with only one previous conviction. The real problem with getting this Client bail was that he had absconded from an open prison!

It took about 10 minutes of me talking to the Client before he accepted that it was impossible for him to leave the Court on bail and walk out using his own two feet. The Client was clearly trying his luck to see if there was anyway he could get bail and avoid the inevitable return to prison.

I had not been provided with details of the absconding so after I had dealt with the Client's hearing I asked how long the Client had to serve in the open prison before he was due to be released on licence. The Client told me that he only had to serve two weeks in the open prison prior to his early release on licence. So rather than just serve two weeks the Client went on the run - he now has about one year left to serve the remainder of his sentence!

Bad Back

Sorry for the lack of posts this week but due to ill health I have been pretty much housebound.

Hopefully normal service will be resumed soon.

What Rubbish!

I was looking around the Attorney General's web site earlier today when I saw a press release on the subject of disclosure. I downloaded the press release as the only way to view the press release was to download the document as a MS Word file. I then read part of it that referred to a case that I had recently dealt with:

"Harmondsworth detention centre riots, Croydon Crown Court, 2005. A judge ordered disclosure of everything the defence wanted, in complete disregard, say the prosecution, of the CPIA. He also ordered wholesale disclosure of 500 hours of video surveillance, commenting in response to prosecution objections ‘The defence will soon get bored at looking at it all’. It took several days for the prosecution to amass the material for inspection, and several days longer for the defence to go through it all, but before they finished they decided that they had had enough. There was nothing that could help their case, and they felt no need to examine them further. Nothing the judge had ordered to be disclosed met the disclosure test. The defence conceded at some point that their search through the unused material was pointless, and they stopped."

This was a multi-handed case which originally involved 16 defendants, eventually when it went to trial there were only seven or eight defendants left by the time the jury retired to consider their verdict as the others slowly pleaded guilty or their case was discontinued. The statement from the Attorney General's office is completely wrong. The Prosecution voluntarily disclosed 3,500 hours worth of CCTV, and not 500 hours. This disclosure came before the prosecution had even considered the CPIA! The prosecution did not object to the disclosure of this CCTV material as they knew that it was material that may undermine their case so they were obliged to serve the CCTV. There was no order to disclose the CCTV. The prosecution had amassed the material during the course of the Police investigation and only had to make arrangements to copy the material instead of spending several days to amass the material for inspection. It took months (for the defence) to go through the material, not days. The relevant CCTV material that was on the CCTV was also served in a highlights DVD as a prosecution exhibit - this was then played back by my Client's defence team to the jury (after a very few edits) to show that the CCTV proved he did not damage property, assault any prison officers, or get involved in a riot.

The content of this particular point in the press release is so far removed from the truth it iunbelievablele.

Victim's Code Of Practice

The Home Office has now published the Victim's Code of Practice which sets out the responsibilities and duties owed towards victims of crime by government bodies such as the Crown Prosecution Service.

One part of this document contains details of how the Crown Prosecution Service are to keep their victims and vulnerable witnesses informed about proceedings. In many cases the Crown Prosecution Service are obliged to report to vulnerable witnesses within one day why a decision was made to do what the Crown Prosecution Service has done. The Crown Prosecution Service are now going to be involved in a burdensome administrative procedures in both trying to prosecute a case and to keep the victim or vulnerable witness informed of the progress of the case. The Police have similar duties.

The government is often accused of creating red tape where it is not necessary. I believe that this is a fine example of a government meddling with a system and imposing changes that are likely to have a negative impact on the criminal justice system. It may well be advantageous for victims of crime to be kept informed of the progress of their case but is it really in their interests when a massive administrative burden will be placed upon the government agencies that are sometimes struggling simply to carry out their duties in the Police Station and Courts?

I watched three cases be dismissed today because the Crown Prosecution Service had been unable to get their papers, and evidence, in to a satisfactory format for the case to be committed from the Magistrates Court to the Crown Court. The reason given by the Prosecutor for not being properly prepared for the committal hearings was that there was a backlog of work in the CPS typing pool that had not been overcome since the case was last in Court.

Well done Mr. Clarke, this is another fine addition to the criminal justice system. I am just so happy that the Victim's Code of Practice places no duties upon me.

Digging

As I was in my office in the afternoon today I decided to make some enquiries on a case. My Client had been disqualified from driving in his absence from one Court and had appeared in another for driving whilst disqualified.

My instructions were that my Client knew nothing about the disqualification as he had not received the Court summons for the prosecution that resulted in him being disqualified from driving. In order to find evidence to support his instructions I had suggested that I make enquiries with the Court that disqualified him about the proceedings. My Client thought that this was a good idea, and so did I until I made the phone call.

I spoke with the Court:

Me: Was he disqualified in his absence?
Them: Yes
Me: Was there any correspondence between the Court and my Client?
Them: We sent him notices about the case being adjourned, and then when he was disqualified in his absence we sent him a letter informing him of the disqualification.
Me: So did he ever appear in Court or write to you?
Them: No
Me: So there was no response from my Client?
Them: No, but a friend of his phoned up saying he couldn't attend on one date.
Me: Oh.

At this point I realised that I had uncovered something that possibly went contrary to my Client's instructions. If my Client claimed not to know about the case why did his friend phone the Court? Perhaps I dug too deep? I have now arranged an appointment to see my Client so that he can clarify his instructions.

Leaving

After announcing my resignation earlier this week I have received a number of messages wishing me luck in my new job. I would like to thank these individuals for their kind words of support.

There was one comment that asked whether the blogging would stop when I changed jobs. Fear not, I am simply changing firms and location. I will continue to work as a criminal solicitor doing defence work and I will continue to bore others with my random and mundane postings on this blog.

How Pleasant, No Defendants

My morning was fairly simple today, I had three cases in the Magistrates Court and for each case the Defendants attendance had been excused.

Dealing with Court cases without Defendants is often so much easier. You do not have to wait for the Client to attend, you do not have to take instructions and provide advice on the proceedings, and ushers usually are more likely to call your case on if you sit waiting in Court because they do not have to go in search of the Client who is likely to be anywhere but standing outside of the Court. You just get on and do the job.

My cases were called on quickly and I got out of Court quickly - all very satisfying after yesterdays waiting around for most of the day.

Deputy DJ On Her First Day

I had a mundane day today waiting around at a South London Magistrates Court. Rather unhelpfully my Client arrived an hour late for Court so by the time I had taken instructions from him and had been placed in the usher's list of 'ready' cases I was unlikely to get on until the afternoon.

As I sat in Court observing the proceedings I watched the Deputy District Judge act in a rather hard way. No one was getting bail, all guilty pleas resulted in pre-sentences reports considering all options for sentencing including prison - this DDJ was taking no prisoners.

It transpired that this was in fact the first day that the Deputy District Judge had sat at this particular Court and that she was going to be sitting at this Court for sometime. She appeared to be stamping her mark on the Court.

Crime Pays

I mentioned that I signed off a bill this week for at least £20,000 worth of work. I was at a South London Magistrates Court today and bumped in to the barrister who was instructed by me as leading counsel. I am not quite sure what he was doing in the Magistrates Court but never mind that.

As I sat discussing various complicated legal issues I asked if he had been paid on the case that I had submitted my bill for. He said that he had been paid and that he received a cheque for about £80,000 last week! That shows you where the real money in crime is. If you can get the work Crown Court advocacy can pay well. He got paid 400% more than my firm did (although my bill might get enhanced)! The barrister read the same set of papers that I had, he saw the Client less than I did prior to the trial, he watched less of the CCTV from the case, but clearly he did more advocacy during the eight week trial.

Resignation

I resigned today. Having worked at my current firm for the past two and a half years I decided that enough was enough. Over the past few weeks I have had a number of quiet meetings and formal interviews that resulted in two very good job offers. I spent the weekend trying to decide which offer to accept and today I made my mind up. In the new year I will start working in Essex.

I took a gamble when I started this current job. The firm was not an established 'player' in the criminal defence market and it had no other duty solicitors working for it when I joined. When I started at the firm I showed enthusiasm for training others to become Police Station accredited so that the trainees and paralegals could attend at Police Station cases. I showed enthusiasm for training others to become duty solicitors to build up the flow of business in the firm. At first the firm reciprocated my enthusiasm and paid for the accreditation courses for a few members of staff, but those staff left before they completed their exams (although I know that within a few weeks of leaving my current firm they passed their exams). The firm then decided that it would only pay for Police Station accreditation in exceptional circumstances. Great policy idea!

As a result of my firm's backward thinking policy and a new Legal Services Commission policy (the one that says only Solicitors who have obtained, or who have registered by 31st October 2005 to obtain, the necessary qualifications in the form of the police station accreditation can attend at Police Stations to dispense advice and assistance) means that as of 1st November 2005 I will be the only employee in the firm who can go and advise Clients at the Police Station. When the new year comes and I leave there will be no one in the firm who can provide advice and assistance at the Police Station.

I handed my resignation in after coming back from Court. I sat at my desk reading an e-mail that due to a general lack of billing in the firm that it was likely to lead to 'streamlining'. It appears that my resignation may assist the streamlining idea.

Looking at the firm now I think that my gamble did not pay off and I am jumping off of a sinking ship. I am going to predict within a year the criminal department will close.

Billing No. 2

During my mundane day I signed off a bill for a big Crown Court case. A few years ago I billed all of the Crown Court cases that I dealt with so when a big case finished I always had the horrible task of making sense of my notes and turning attendance notes in to pound notes.

This bill that I signed off came in at just under £20,000 worth of work before an uplift. I am happy to say that a lot of that work was done by my fair hand. The bill has been prepared by one of the Costs Draughtsmen employed by my firm and this particular bill seeks an uplift for attendance and preparation work. This means that whatever work has been done is sought to be paid at a slightly higher rate on the basis that the case was complex.

When I see these sizeable criminal legal aid bills it makes me think that there is still some money to be made in criminal defence work. If the uplift is applied to the case it should cover the cost of employing two trainee solicitors or paralegals for a year.

Billing

Today I spent most of my day billing files for cases that have been concluded at the Police Station and Magistrates Court.

This mundane task is a necessary evil in the world of legal aid. To ensure that there is a constant flow of cases being billed each month the firm that I work for sets a date for each month when each fee earner must bill all billable files under their control.

What often causes trouble when billing files is trying to locate the attendance notes that other fee earners should have put on the file but for some reason have not. Also if Counsel has been down to the Magistrates Court they often phone through with the result of their case and later fax through an attendance sheet - for some reason the firm's high tech fax to e-mail system seems to loose half of Counsel's attendance notes!

After doing the usual searches and making the usual phone calls I managed to sort out the vast majority of my billing to sufficiently please those in control at the firm. As long as they see money coming in they are kept at bay for another month.

I Said No Comment

I went off to the Police Station in the afternoon today to deal with a youth. The youth seemed to have a particular dislike for the Police. After discussing the case with the Client it was agreed that he was not going to answer questions in the interview and that I would read out a prepared statement on his behalf at the start of the interview.

The interview started and I read out the prepared statement, my Client then started giving his reply of 'no comment' to all questions. The Client seemed to get frustrated during the interview, particularly when he believed a question was being repeated:

Q: Where do you live?
A: No comment.
Q: Do you live at 68 Potter Street?
A: No comment.
Q: Do you deny living at 68 Potter Street?
A: I've already said, no comment?
Q: So you agree that you live at 68 Potter Street?
A: Are you stupid, no comment.
Q: So you don't live at 68 Potter Street?
A: For f***s sake, no f***ing comment, are you deaf?

The Clients interview transcript is not going to make pretty reading if he is prosecuted. As the interview progressed the Client realised that the earlier he said 'no comment' the more he could frustrate the questioning process. As the question was being asked, and before the Police Officers got a chance to finish the question the Client started to answer 'no comment'. Eventually he started saying 'no comment' repeatedly whether he was being asked a question or not. The Police followed their interview procedures and continued despite my Client's best efforts.

Crime Reduction Ideas

As you may have noticed there are Google Ads running on this site. The Google Ads that are displayed are not chosen by me but displayed on the basis of the content of the blog as scanned by Google.

The usual adverts seem to focus on the word solicitor and therefore drag up compensation adverts. Usually there are a handful of adverts that are based on criminal defence work. Blog adverts often get displayed. Every so often an unusual advert pops up. The latest unusual advert that I was was for a company called Dyejet.

Dyejet provides the following information: "Protect yourself... When the offender knows they will be identified and marked out, protection starts for you. Woad be dyed You!!! Offender
You will be coloured blue, (dyed in woad) if you miss behave against the community and the dye will mark you out for what you have done! You will be identified and punished. Woadbetied you!! This is how in the past, offenders and criminals were marked out from the innocent people of the community, in order that the laws of the land could be enforced. Dyejet the Offender is the modern answer for innocent people to identify offenders and protect themselves against modern crimes by marking that person out from the crowd, so the police can recognise and question anyone involved?"

This device struck me as being something akin to a rape alarm in that it was carried by people to prevent an attack. I had a look at the web site and noticed that it had suggestions in how to best deploy the dyejetoffender. I found the instructions slightly amusing as the manufacturers seem to think that firstly that you will actually have the opportunity to see an attacker before they strike, and then secondly that the offender will care whether they are sprayed.

I know that many of the street muggers that I deal with could not care less if they were sprayed, provided that they got some property of value that they could sell on. Prevention is always a good solution but for the hardcore criminal a blue DNA based spray is unlikely to stop them.

C'mon, Keep Up

I am on the Court Duty Solicitor rotas for two busy London Magistrates Court. One of the Court Duty schemes can be quite productive, the other is a complete shambles.

The original rota system for one of the Courts was drawn up and seemingly operated without problem. Out of six active Courts three of them have a dedicated Duty Solicitor. A new Court scheduling system was then introduced but the Duty Solicitor rota was preserved. Due to the antiquated Court Duty rota slots are now allocated to Court rooms that are scheduled to have trials. On the days when I have appeared as Court Duty Solicitor for a Court room that has trials scheduled I am simply told to help out with other Courts. This often involves going to the other Courts that are already covered by Duty Solicitors to ask if they need any assistance, and to be told that no assistance is required. Of course no assistance is required because those Duty Solicitors rarely want to relinquish work when there is a scarcity of well paid legal aid criminal defence work in the first place.

Today I was Court Duty Solicitor for the remand Court at the shambolic Court. There were no overnights to be dealt with, and first appearances do not take place on a Tuesday at this Magistrates Court. That meant I was supposed to assist anyone who had already appeared at Court who wanted the Duty Solicitor. But the fact that people were returning to Court meant that the vast majority were already represented by other solicitors, if anyone had previously seen the Duty Solicitor then they are usually precluded from seeing a Duty Solicitor on a further occasion. Guess how many people I assisted today? Only one.

This particular Court Duty rota badly needs reorganising, and despite my whinging to the Court staff there seems to be no prospect of things changing.

Guess how much I get paid for waiting around at Court as Duty Solicitor and dealing with no cases? I get paid as much to deal with cases as I do for sitting on my backside. The wonders of the remuneration system for Court Duty Solicitors means that I paid a flat rate to deal with cases or not to deal with cases.

This Court Duty rota is causing waste in the criminal justice system and needs to be sorted out.

Boredom

I was thoroughly bored at Court today. Whilst waiting to assist Clients I sat and observed:

1. A defendant who had mental health problems who had pleaded guilty to criminal damage. A medical report suggested that the Defendant should be given a hospital order to receive treatment and then be released from the care of the hospital when he was deemed fit. The District Judge cut straight to the chase and sentenced the Defendant to a conditional discharge and a compensation order. The District Judge identified that the Defendant coped well when taking medication and had recently received back dated benefits. So if he continued to take medication he would probably not offend again.

2. A solicitor explain that he is having problems obtaining prior authority from the Legal Services Commission to pay a psychiatrist to provide a report on his Client. The Legal Services Commission had previously granted prior authority for a report from a psychologist, but now had to consider a new application for a psychiatrist. A trial for this case was about two months away and everyone seemed resigned to the fact that two months was not long enough to get prior authority to pay a psychiatrist, then to find a psychiatrist, and then to get a report from them.

3. A solicitor who attended at a pre-trial review for a matter of failing to provide a specimen of breath after being suspected of drink driving. This solicitor confirmed that he was not calling any expert evidence and that he was not calling any medical evidence although he was running a defence that his Client was medically unfit to provide a sample - this case looks to be doomed to failure.

4. The Court Clerk loose his rag when requesting a hearing date over the telephone in open Court. He first phoned through to his scheduling office and received a hearing date. He then rung back two minutes later to cancel the first date and make a further hearing date. During the second telephone conversation with the scheduling office the Clerk became rather irate when he was told that he could not be given a further date over the telephone - he only realised that he became irate when he put the phone down and saw that everyone was looking at him.

Don't Shake Their Hand

Over the weekend I went out to dinner with a group of parents from my daughter's school. As we sat chatting I spoke with one particular parent who works as a Special Constable. Our conversation consisted of having little digs at each other in terms of Clients being apprehended by the Police and me doing my utmost to defend them. We did not agree on much.

There was one subject that the did agree on, and that was no one should ever shake the hand of a person detained at the Police Station unless the person greeting the detained person is wearing rubber gloves.

The Special Constable explained to me one of her recent experiences whilst working in an Essex town during the late hours of a Friday night. She stated that she had arrested a female for drunk and disorderly and this person had been handcuffed and placed in a Police van (affectionately known to the passengers as a meat wagon). The Special Constable then left the female under the supervision of another Police Officer and returned within a number of minutes to find the female masturbating in the back of the van! The handcuffs were quickly moved from being at the front of the female to the rear.

I then told the story of a colleague. My firm had received a call about one of our regular Clients one night who was to be interviewed in the morning. We were warned on the telephone that the Client was acting a bit mental and had also been arrested for criminal damage as he had daubed excrement around his cell. My colleague who attended at the Police Station made the fatal error of walking in to a consultation room and then shaking the hand of this Client without even questioning whether the Client had washed his hand or not!

Despite the fact that a welcoming firm handshake can act as a very good introduction to inspire confidence in Clients it is rarely a good idea to do it unless you know what they have been doing with their hands.

Newton Fun

In the afternoon today I attended at a Magistrates Court to deal with a Newton hearing. My Client had pleaded guilty to an assault but disputed some of the facts that the prosecution say happened. When the hearing date had been set back in September I had drafted a basis of plea document that set out what my Client accepted happening and what he disputed about the prosecution case.

When I turned up to Court today my Client (despite having bail conditions not to) had spoken to the victim of the assault. The victim did not want to come to Court to give evidence in the Newton hearing and was quite happy to accept the basis of plea entered by the Client.

I walked in to Court and spoke with the prosecutor dealing with the case. After trying to make a deal she went off to speak to the victim who stated that they did not want to give evidence or take part in the Newton hearing. The prosecutor then spoke to me and suggested that she would call the victim as a hostile witness and apply to have their statement read to the Court.

I had been given clear instructions by my Defendant to avoid a Newton hearing and arrange for the prosecution to agree a basis of plea that was favourable to him. I set about my task engaging with the prosecutor discussing the finer details of the case:

Me: My Client accepts punching them in the face a few times.
Prosecutor: That's not enough I want the fact that he hit them with the remote control and iron, then dragged them around the floor by their hair to be in.
Me: No. He will certainly go to prison for that. I'll offer you the punching in the face and hitting them with the remote.
Prosecutor: He needs to accept he has caused an injury. He caused bruising and swelling.
Me: Okay he punched them in the face causing bruising and hit them with the remote.
Prosecutor: ...and hit them with the iron.
Me: No.
Prosecutor: He either accepts the iron or the hair dragging as well otherwise we do not have a basis.
Me: How about punching, the remote, and that he grabbed the hair and shook them? No iron and no dragging.
Prosecutor: Okay.

So there I was bartering over punches, being hit with an iron, remote control, and being dragged around on the floor by their hair. Once the deal was struck the victim left Court apparently happy that they did not have to give evidence. My Client was happy because many of the aggravating factors in their case had been swept away with the agreement of the prosecutor.

The Prosecutor had a hard time giving the facts of the case to the Magistrates because her case summary no longer made any sense as it referred to facts she had agreed that could be dispensed with. Eventually the case was adjourned for pre-sentence reports, I am predicting that my Client will now receive a community sentence rather than the inevitable prison sentence that he had been looking at if convicted on the basis of the prosecution's facts.

Two Day Trial (Part Two)

My Clients for my two day trial turned up to Court at 11.05 am today. As they had not given any instructions since being at the Police Station three months ago their late arrival caused some problems. I embarrassingly had to ask for further time from the District Judge when I had already been given time to 11.00 am to locate and take instructions from my Client.

After 10 minutes the trial cracked. My Clients changed their instructions, admitted limited responsibility, pleaded guilty to lesser charges, were sentenced there and then, and walked out of Court to start their community based sentences. I am pleased to say that the Prosecutor was being sensible and accepted proposed pleas to issues where he had evidence and withdrew charges where there was no evidence. Previously the prosecution had been unwilling to agree to these kind of suggestions.

It is all rather depressing cracking a trial at the last moment as it means my great efforts in preparing the case go to waste, unless my considered advice to plead guilty after a very thorough examination of the evidence can be considered as good preparatory work.

The only downside in finishing the two day trial early is that I then had to go and deal with afternoon cases that a colleague had difficulty in attending at!

Court Hopping

I went Court hopping today.

I received a telephone call yesterday informing me that an application to break a two day Youth Court trial was going to be listed today at the request of the solicitors for a Co-defendant in the case. I was already due to be at the Magistrates Court that was a mile up the road.

Due to only being told about the application to break the trial fixture yesterday I was unable to arrange for someone else to cover the hearing. A number of my colleagues are away, another was already attending at an on going Crown Court trial, and the others also had existing Court commitments.

I set off for the first hearing with my fingers crossed that the hearing would start promptly at 10.00 am. I hoped that the second hearing would not start until 10.30 am as the second Court starts sitting at 10.30 am. Unfortunately my first hearing did not start until 10.25 am. I ran out of the first Court after making a flurry of phone calls warning about my late arrival.

I got to the second Court by 10.50 am to find that the second case had not been put on to the list. Neither the Court nor the CPS had a file. I had to wait around until 12 noon before the Court had made up a file and listed the case in a Court, then shortly after the Court file emerged a CPS file was found. Despite being ready shortly after 12 noon I had to join the queue at the end of the list and eventually got called on at 3.05 pm.

The Court hopping was successful in so far as I got to be at the right places at the right time - it is just a shame that the second case took so long to deal with.

Two Day Trial

I am starting a two day trial tomorrow that will start on Friday and finish on Monday. The trial should be good fun as there are four people involved in the case, and one has pleaded guilty to robbery - this is the same offence that my Clients are charged with. I will probably run a cut throat defence blaming the person who has already pleaded guilty. I say I will 'probably' run a cut throat defence as my Clients have simply not provided any instructions since they left the Police Station. Despite repeated letters and phone calls I have got no instructions other than what was said in the Police interview.

Without detailed instructions I am going to have to get my instructions before the trial starts - I am certainly in for a busy few days!

Never Ask A Witness A Question That You Do Not Know The Answer To

I went off to the Youth Court in the afternoon for a trial over possession of a bladed article. My Client's instructions had always been slightly fluid and it did not help that he kept changing the witnesses that he claimed would corroborate his case.

I had previously warned the Client that the chances of success in his trial were reduced if he had no witnesses to corroborate his account. The Client turned up to Court with two witnesses. I was placed in the position whether to call the witnesses without having time to proof them and go through their evidence in detail, or simply call the Defendant and ignore the fact that his witnesses could assist his case. A request to adjourn the case was refused and a request for further time to prepare was refused - and rightly so as the Client had been given ample opportunity to bring his witnesses to me so I could proof them. The Client opted to run the case by the seat of his pants and after 5 minutes with each witness the Client told me that he wanted both witnesses called even though I could not be sure that their accounts were supportive of his in every detail.

Things went horribly wrong in Court as the Client gave an account, the first witness gave an account that was different over minor details, the second witness gave an account that differed from both the Client and the first witness. I even resorted to asking questions that could only be answered with yes or no to try to keep the witnesses from deviating from the Client's account. At one point I was warned about my leading questions by the District Judge. I had trouble in controlling the witnesses simply because I only had a vague idea what they were going to say. There is a golden rule in trials: "Never ask a witness a question that you do not know the answer to". Unfortunately I was put in a position where my Client had provided express instructions for me to break the golden rule!

My Client was convicted because the District Judge did not believe his evidence and in giving his reasons to the Court he called my Client a liar and the witnesses liars. He was probably right.

Fame

Today was rather bizarre. Whilst I had been in Court I had been left a voicemail message on my mobile from a prospective Client asking if I could represent them tomorrow. After I had finished at Court I returned to my office and as I walked in the door this prospective Client phoned me through my office landline.

After discussing their case I took down their details and then realised that they were well known and could even be described as famous or a celebrity. Apparently I had been highly recommended by a Client I had acted for in the past.

Ten minutes after putting the phone down on this Client Radio Five telephoned me and asked if I would be available to go on air during their morning phone in about the whether youth sentences were too low. A few weeks ago I had spoken to a Radio 5 researcher about this blog and they had dug up my details from that earlier conversation. Foolishly I declined the offer to go on air as it clashed with other Court commitments that I had to cover.

Within the space of 10 minutes I had picked up a well known personality to represent and independent of that case I had been asked to speak on Radio 5.

What A Cheek

There was an interesting article in the Guardian today, "Goldsmith attacks defence 'fishing expeditions'". Lord Goldsmith has accused defence lawyers of running up thousands of pounds worth of legal aid bills by looking for disclosure. He has also suggested that cases have had to be abandoned due to defence request for disclosure? Is this man insane? Does he not realise that defence lawyers are supposed to act in the bests interests of their Clients and from time to time that means pursuing a line of disclosure with the Prosecution until it has either proved successful or unsuccessful?

Here are some of the comments from the report: "He will call for a crackdown on disclosure in a speech tomorrow to prosecutors, who he admits are not blameless themselves. Prosecutors sometimes "hand over the keys to the warehouse", rather than go through the documents and provide only those relevant to the defence."

May be he should be more careful who he instructs to act for the prosecution then rather than blame a shoddy prosecution performance on a defence lawyer?

Here is another comment from the report: "Lord Goldsmith said in some cases prosecutions were derailed when the defence demanded disclosure of documents which were in the hands of a third party. Prosecutors might not know whether the material was relevant or not. He cited the Prudential fraud case, which collapsed last April after running up £10m in legal aid costs without reaching trial. The judge ruled that the defendants could not receive a fair trial because the prosecution had persistently failed to disclose documents to the defence and had neglected to take action to prevent the Prudential from destroying large numbers of its documents."

I see Lord Goldsmith, you would prefer it if us defence lawyers did not test the evidence, that we perhaps simply accept that a persistent failure to disclose documents is a fair part of the justice system?

Another comment: "In another move which could produce legal aid savings, he said ministers hoped to have a provision allowing the most complex fraud cases to be tried without a jury in place by January." I have an even better money saving scheme that would impress Lord Goldsmith, don't allow defence lawyers to represent the Defendants!

Sometimes the comments that people make drive me insane! Surely Lord Goldsmith can see that he is talking rubbish and the failures in the system that have been opened up by defence lawyers just goes to show that he needs to get his own house in order?

Bar Strike Prediction

My prediction several weeks ago that the Bar strike would be called off and an announcement would be made that they are going to consider their position after the Carter review has been completed seems only to be half correct.

I have spent the week speaking to various characters that I have bumped in to. The Bar is split in to different 'circuits' representing different geographical areas of England and Wales. Apparently different circuits are taking different action. The South Eastern circuit which includes London is not going on strike but the Northern circuits are.

This strike action is not going to have an effect for a short while as it is only going to effect new cases after 3rd October 2005. It will be interesting to see what happens during the strike.

Busy, Busy, Busy...

I went to my local Magistrates Court yesterday to act as Court Duty Solicitor. Recently the Court Duty sessions have been very quiet where there are only three or four people asking for the services of the Court Duty Solicitor. Yesterday was really busy.

After suffering travel delays I arrived at Court twenty minutes later than I had planned to arrive. I rushed in through the doors and was immediately confronted by a queue of twelve people who wanted to see me and a demanding own Client who was also demanding to see me.

I worked through the morning, lunch and was still going at 4.45pm. I dealt with many drink drive and failing to provide cases and a handful of other imprisonable offences. All in all it was a fairly productive day. As a result of the cases adjourned from today I have lodged six legal aid applications and if they all result in guilty pleas and standard fees then the firm I worked for has coined in more than £1,350 plus VAT, plustravelingg, plus waiting. Also there is the money that they earn as a result of me being Court Duty Solicitor, and that would have been close to £400 plus VAT. Not bad money for the cases and work generated from one day.

Waiting Again

The joy of waiting at Court is starting to wear me down. Today I arrived promptly at Court for a pre-trial review for a case where my Clients attendance had been excused. As I arrived at Court on time I anticipated that I had chance of getting on early and away from Court early.

Despite my prompt arrival my case could not be dealt with early as the Prosecutor had some enquiries to conduct in my case before they could be ready.

I then looked around the waiting area and saw seven other solicitors sitting around waiting. From time to time they would take instructions but generally they were waiting like me. So for a period of time there were seven people all sitting waiting at legal aid rates of £26.30 per hour.

The Magistrates and Youth Court system (apart from trials and other specially scheduled hearings) work on a first come first served basis. The Court will schedule 20 or so cases in the list and when both the Defendants and legal representatives are ready they will go on the usher's list as being a ready case. Then each case on the ready list is called in to Court.

Success of getting a case dealt with early at Court is so random, and is sodependentt on factors outside of my control that I find the whole waiting situation so frustrating. The factors that can spoil a case being ready are things such as:

1. The prosecution not having the file or case papers.
2. The Defendant arriving at Court late.
3. If the Defendant is in custody Securicor/Premier bringing the Defendant late.
4. The usher taking cases out of order and giving preference to their 'preferred solicitor'.
5. The Court being really slow to deal with other cases.
6. A Co-defendant or Co-defendant's solicitor arriving at Court late.
7. The Court not having a file for the Defendant.

There is of course the possibility that the Defendant has not previously provided any instructions so you have to go through the case with them at Court meaning that you will be thrown in to the back end of the usher's ready case list when you are finally ready to go in to Court.

I have thought about this many times and have yet to come up with a decent suggestion as to how to eliminate all of this waiting around at Youth Courts or Magistrates Court. An obvious suggestion would be to move to the Crown Court system where Defendants are given staggered times across the morning and afternoon for cases to be dealt with. The random factors that plague the Youth Court and Magistrates Court system are likely to render the staggered system unworkable.

Why Do They Do It?

"I urge you to co-operate with the Probation Service in the preparation of your pre-sentence report as it may be very influential when you are to be sentenced". This is a standard phrase that I use and include in letters when Clients have pleaded guilty and their case has been adjourned for pre-sentence reports. If a PSR has been ordered I usually come out of Court and verbally advise my Clients to drop everything to ensure that they attend at their appointment with Probation. The appointment is usually made by the Probation Service sending the Client a letter in the post telling them to attend their office within a few days at an appointed date and time.

With this advice in mind I still fail to understand why some of my Clients simply do not attend for their PSR interviews. I have heard all of the excuses under the sun. Some of my Clients fail to understand that where a PSR has been ordered considering all sentencing options, including prison, the fact that they fail to turn up to the PSR interview without a good excuse suggests that they are lazy and unlikely to comply with any other sentence supervised by the Probation Service.

What frustrates me about Clients who fail to attend at their appointment for their PSR interview is that I am usually left to explain to the Court why the interview did not take place as arranged. Sometimes the Court will refuse to adjourn the case further and they proceed to sentencing with only prison in mind.

Pleasant Prosecutor

My afternoon today was spent down at a Youth Court for what should have been a trial. This was a trial where my Client had failed to provide any instructions and had a pretty poor defence anyway.

I had dealt with the Police Station investigation for this case and had been present when the Client had been interviewed. I had told him to answer questions and he had put forward a less than convincing defence as to why he was riding around on a £3,000 motorbike that had been stolen less than 24 hours before his arrest.

When I turned up to Court I had the usual chat with the Prosecutor who seemed to have his doubts about the case. He kept telling me that my Client sounded very credible in interview. Eventually the Prosecutor decided to offer no evidence against my Client on the basis of what he had said, and the manner in which he had said, in interview. This was a case where my Client was being prosecuted for want of a better phrase joy riding. His defence was that he paid money for the motorbike that he was on, and he had no suspicion or knowledge that the bike was stolen. All he had said in interview was that he had paid a guy on the street a few hundred pounds for the bike.

The Prosecutor did offer no evidence against my Client, which was a good result. I cannot decide why the experienced Prosecutor offered no evidence as his case was reasonably strong, perhaps he has a good trial record to protect and did not want to suffer a loss, perhaps he wanted a quick afternoon free of a trial so he could go home, or perhaps he actuallybelievedd what a Defendant had said!

Rude Judge

As part of my travels today I went to Snaresbrook Crown Court where three of my Clients were appearing for a plea and directions hearing. Out of these three Clients two did not speak English and required the services of an interpreter.

When the case was called on the interpreter was sworn in and before anything else was said the Judge said to defence counsel, "Very disappointing Mr. Bloggs." Mr. Bloggs replied, "Sorry your Honour?" Then the Judge asked if the Clients were UK residents. The Judge was told that the three Clients had all been UK residents for over 10 years. Then the Judge laid in to the Clients who did not speak English saying that it was very disappointing that they had come to and been in the UK for over 10 years and had not even made the effort to learn English, and that they had not made the effort to integrate within English society. At this point most of the jaws of people in the Court room had hit the floor as they could not believe what was being said.

The Judge fell short of making any racist remarks but clearly left everyone with the opinion that if anyone had failed to integrate with society it was probably the Judge. He did not take the time to understand that one of the Clients had such a poor education in their country of origin that they could not read or write in their native language. The Judge also failed to appreciate that the second defendant using the interpreter did speak some English, but had the interpreter not been present he would have undoubtedly been unable to follow the Court proceedings with phrases and words being banded around such as 'indictment', 'lie on file', or 'basis of plea'.

Isn't it good that all members of our judiciary are fair and impartial for every case and defendant that they deal with?

Marriage Made In...?

Whilst standing around waiting for a case to be called on at Court last week I started talking to a fellow solicitor. After talking for a while our conversation drifted off the topic that we started on and this solicitor told me that he was married to a vicar. I was most intrigued about this marriage as I would have thought that a vicar might have had some issues being married to a person who may from time to time protect people who are not wholly innocent.

I Don't Give A Toss Anymore

Whilst sitting around at Southwark Crown Court today waiting to go in to Court I overhead two police officers talking.

Officer 1: ...She was stabbed in the neck by her boyfriend. It was touch and go for a while in hospital and after a few days the boyfriend turned up. He wanted to get in to her bed for a shag. The hospital would not have it so she asked me if she could leave. I said it was not up to me. She left with the boyfriend who nearly killed her. That's why I don't give a toss anymore, why should I?
Officer 2: Hmmm...
Officer 1: If they are going to get in to bed with the people who have just stabbed them why should they bother to turn up to Court?
Officer 2: Hmmm...
Officer 1: It does my head in.

Newton Hearings

I was down in the diary to deal with a Newton hearing today. Newton hearings are often fairly odd because they are mini trials to decide how guilty someone. Usually a Newton hearing comes about because a Client has made limited admissions or accepts responsibility for part of a crime but not all of it.

My hearing today was to decide if my Client had accidentally struck his partner or whether he had really laid in to her and caused her moderate injuries by punching, kicking etc., etc.

The slightly odd thing about this hearing was that there had been two previous attempts to have the Newton hearing but the victim had failed to attend and had shown little interest in attending today. I say it is slightly odd for this scenario as people accused of domestic violence often say nothing when they are interviewed, they then plead not guilty at Court in the hope that the victim will not come to Court, or that the Prosecution will not have other evidence such as witnesses, photographs or hearsay applications that are capable of proving the case without the victim attending. I had not previously dealt with this Client before and had not worked on his file until I prepared for today's hearing.

I went off to Court expecting the victim not to turn up again and for things to go my way. The victim did not turn up, but eventually the Court ran out of time to deal with my case and at 4.45 pm it was decided that it was too late to deal with any issues arising from my case even though the victim had failed to attend again. A trial from the morning that had an estimate of 3 hours kept on going until past 4.45 pm. If that trial had finished on time my Client would have got his chance to argue that his basis of plea was correct.

Bizzare Offences

When I go off to Court I usually see the same faces. Newer faces tend to walk around with books under their arm. New barristers always tend to walk around with either a copy of Blackstone's Criminal Practice or Archbold's Pleadings and Evidence. New solicitors generally walk around either with a copy of Anthony and Berryman's Magistrates Court guide or the Criminal Law Solicitors Association Duty Solicitor Handbook. My preference is to walk around with no books as I have enough files to walk around with. If I need to refer to a book I will either find someone at Court and commandeer their copy for five minutes, or I will phone up the office and get someone to read out what I need to know.

Everytime I read the larger text books I come across some kind of bizarre criminal offence. Now these bizarre offences sometimes come in handy. Years ago I remember being at Tottenham Police Station and I was representing a youth who had been accused of theft of a pedal cycle. I had remembered seeing that there was an equivalent offence to joyriding for bicycles under s. 12(5) of the Theft Act 1968. After using this bizarre offence I managed to get my Client a caution instead of being charged with theft. They had not considered cautioning him as he already had cautions for theft (straightforward s. 1 of the Theft Act 1968), but they were happy to caution him where the caution was for a different offence.

Here are a few more offences that I have pulled out of the text books - ther older the offence the more bizarre it sounds. By the way these are all offences that are still currently available to be committed and punished for.

Section 36 of the Offences Against the Person Act 1861: Obstructing or assaulting a clergyman or other minister in the discharge of his duties in place of worship or burial place, or on his way thither

Whosoever shall, by threats or force, obstruct or prevent or endeavour to obstruct or prevent, any clergyman or other minister in or from celebrating divine service or otherwise officiating in any church, chapel, meeting house, or other place of divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place, or shall strike or offer any violence to, or shall, upon any civil process, or under the pretence of executing any civil process, arrest any clergyman or other minister who is engaged in, or to the knowledge of the offender is about to engage in, any of the rites or duties in this section aforesaid, or who to the knowledge of the offender shall be going to perform the same or returning from the performance thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour.

Section 3 of the Game Act 1831: Penalty for killing or taking game on certain days and during certain seasons—Penalty for laying poison to kill game

...If any person whatsoever shall kill or take any game, or use any dog, gun, net, or other engine or instrument for the purpose of killing or taking any game, on a Sunday or Christmas Day, such person shall, on conviction thereof before two justices of the peace, forfeit and pay for every such offence such sum of money, not exceeding [level 1 on the standard scale], as to the said justices shall seem meet,...; and if any person whatsoever shall kill or take any partridge between the first day of February and the first day of September in any year, or any pheasant between the first day of February and the first day of October in any year, or any black game (except in the county of Somerset or Devon, or in the New Forest in the county of Southampton) between the tenth day of December in any year and the twentieth day of August in the succeeding year, or in the county of Somerset or Devon, or in the New Forest aforesaid, between the tenth day of December in any year and the first day of September in the succeeding year, or any grouse commonly called red game between the tenth day of December in any year and the twelfth day of August in the succeeding year, or any bustard between the first day of March and the first day of September in any year, every such person shall, on conviction of any such offence before two justices of the peace, forfeit and pay, for every head of game so killed or taken, such sum of money, not exceeding [level 1 on the standard scale] as to the said justices shall seem meet,...; and if any person, with intent to destroy or injure any game, shall at any time put or cause to be put any poison or poisonous ingredient on any ground, whether open or inclosed, where game usually resort, or in any highway, every such person shall, on conviction thereof before two justices of the peace, forfeit and pay such sum of money, not exceeding [level 1 on the standard scale] as to the said justices shall seem meet...

Section 35 of the Malicious Damage Act 1861: 35 Placing wood, etc, on railway, taking up rails, etc, turning points, showing or hiding signals, etc, with intent to obstruct or overthrow any engine, etc

Whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life... or to be imprisoned...

The Life Of A Head Clerk

Clerks in barristers chambers always seem to me to have an easy life. I regularly phone up clerks and speak to them a number of times a day. Their role in chambers seems to be to maintain the diaries of the barristers they are looking after to ensure they have a constant flow of work. They seem to be able to outsource billing. They also seem to have to shout at more junior members of chambers when something goes wrong.

I went out tonight with a few friends and met up in Holborn. As we were having a quiet drink we were met by a number of barristers and two of their clerks from a chambers that I regularly instruct. The head clerk was out and he was walking around with a briefcase. I asked him what he carried in his briefcase as I doubted that he would take home any work. He told me that he basically carried around the diaries of five QCs, and that his main role in chambers was to ensure that his five QCs got to every case that they were supposed to be at.

This particular clerk is a nice character. He has obviously been very successful and is reaping the rewards of his hard work. He maintains a suntan by regular golfing holidays to Spain. He told me that after a chambers meeting it had been suggested by the more senior members of chambers that he should try to bring in some work from the Cayman Islands. Apparently the Cayman Islands has the same legal system as the UK. He then told me that he is due to fly out to the Cayman Islands soon for a three week trip designed to network and drum up business for his five QCs and other members of chambers.

Now I wonder when I will pick up a serious fraud case that requires a trip to the Cayman Islands that is being funded by legal aid?

Boring Day

I spent all day sitting around a Youth Court today. I had one case listed in the morning and one case listed in the afternoon. This particular Youth Court is well known in East London for being particularly inefficient.

I arrived early and was ready with my Client early. My Client was due to be sentenced but due to a lack of a pre sentence report my Client's case was undoubtedly going to be adjourned. I had to wait over one and a half hours to get called in to Court to spend five minutes asking for an adjournment.

My case in the afternoon was ready to go in to Court just after 2.00 pm. The same usher and same lay bench in the same Court from the morning took another two hours to call on the case.

Neither case finished today. I have achieved nothing today. Looking back I wish I had got a colleague to cover the hearings or instructed a barrister to represent my Clients. I may sound lazy but I have got other cases to prepare and the time spent traveling and waiting today could have been spent preparing those cases.

Plead Guilty!!!

I went off to one of my local Crown Courts to have a conference with a Client and his barrister today. I had suffered massive problems trying to arrange a conference in prison before his trial date so a conference at this trial readiness hearing seemed like a good idea.

This particular case has troubled me for some time. The case concerns a house being used as a cannabis factory kitted out with hydroponic lighting. The evidence against my Client is that he is seen walking out of the house holding two bin liners stuffed full of fresh cannabis leaves. Also his finger print is found inside the house. His instructions prior to the Prosecution serving their forensic evidence was that he was never in the house. Since the forensic evidence has been served my Client has failed to account for his finger print in any way but refuses to accept that the evidence is so strong that he will be convicted.

The conversation at the conference today went something like this:

Me: The evidence against you is overwhelming.
Client: I know, but, I am not pleading guilty.
Me: The evidence is so strong you will be convicted at trial.
Client: Okay.
Me: Why is your finger print in the property?
Client: I don't know.
Me: How did it get there?
Client: I don't know.
Me: C'mon, at least explain what your finger print is doing there?
Client: I don't know how it got there.
Me: Is it your finger print?
Client: I guess so.
Barrister: If you get convicted after a trial you will go to prison for longer than you would if you pleaded guilty.
Client: I know.
Barrister: You could serve a long time in prison.
Client: Right.
Me: Are you insane? Do you not understand what I am saying?
Client: I understand. I am not pleading guilty.

So my mad client decided to maintain his not guilty plea despite my advice that he will undoubtedly be convicted at trial. He seems to understand the advice I am giving him but he refuses, for reasons unknown to myself, to change his plea to get a lesser sentence. Even if my Client is innocent he has not provided me with the evidence, or the leads, I need to help him fight the case. This is one case of legal suicide.

Solicitors On Strike

I went to a meeting yesterday to discuss with other solicitors in my local area whether we should take any strike action should the Legal Services Commission try to impose price competitive tendering upon us.

I have been to a number of these meetings and they were well attended at the beginning. Tonight representatives from just four firms attended! The chap organising the group had sent letters to all of the local firms doing legally aided criminal defence work.

We found ourselves in a difficult position trying to discuss whether or not the local group should consider strike action, after 30 seconds we decided that our meeting was pointless because we could not make a decision on behalf of the local area as only four firms were represented.

We quickly disbanded with the chap who had made considerable efforts over the past few weeks to organise the group telling someone who had rung him on his mobile phone, "I can't be arsed any more, what's the point?"

I left rather disappointed. I had been impressed when I had learnt that this group had formed as it was one of the rare times I had seen solicitors actually doing something positive to stand up for themselves and the rights of their Clients. I guess we will go back to criticising change and fighting amongst ourselves instead of helping each other.