Tuesday, May 31, 2005
Our verbal discussions continued and we were presented with an Officer of superior rank. Unfortunately the superior Officer knew nothing about the case and simply stated that a final decision had not yet been made whether we would be served with the items of unused material that we sought, but at this stage we would not be given access to them.
Counsel at this point suggested that the Police get hold of Prosecuting Counsel on the telephone. They then had a conversation something like this:
"I would like to view an item of unused material please."
"Why can't I?"
"Because I said so".
"Have you actually looked at the items I am asking for and decided that they are unsuitable to be served on the defence?"
"Why do you say I cannot see these items then?"
"Because I said so."
"If you are not going to be helpful I will get this case listed for mention to deal with disclosure issues".
"Go on then".
What a waste of time today was. Rather than sort out matters in a simple manner of negotiation the Prosecution and Police simply refuse to play ball. Due to today's incident a six week trial looks like it will last longer now. In my opinion (and I am of course biased) today is a fine example of the Prosecution being foolish when they know full well that the Court will ultimately order disclosure of the material that the Police denied me access to.
I have been lucky so far and in the years that I have been doing duty solicitor work I have not yet had a slot on either Christmas Eve or Christmas Day - although I have probably now cursed myself and will find myself on duty over Christmas Eve and Christmas Day!
Some might consider my rota slots fortunate as they will inevitably lead to out of hours work and overtime being paid. I personally have grown tired of having most weekends interrupted with duty work. Perhaps it is the time of year and I in fact just need a break? The silly thing is I moan about having to be on duty but whenever I get to the Police Station I actually quite enjoy myself.
Sunday, May 29, 2005
I went out to a Police Station tonight to deal with a fairly routine matter that involved a Client who did not speak English. An interpreter had attended at the Police Station to assist with the language difficulties. After obtaining the Police disclosure I had a conference with my Client and the interpreter. I would ask simple questions and have these translated from English to my Clients native language through the interpreter - I would then have to wait for about five minutes whilst the Client rambled on and provided an answer to my question. I found myself asking the same question again and again to the Client through the interpreter, and despite the simplicity of the questions I could not stop the client from talking.
I must have spent about one hour with the Client with him providing me with his innocent explanation of events. I then explained that the Police were likely to caution him for the offence and immediately his story changed and he admitted the offence. Once I was satisfied that the Client was not just changing his account to get out of the Police Station we went in to interview. By this stage the interpreters patience with the Client was growing thin and every now and then he would grunt in English (and I do not understand why he did not say this in the Clients native language), "No, just stick to the point, come on now." At the end of the interview the Police Officer asked the usual question of did the Client have anything he wanted to say or add to the interview. The Client did not answer this question, the interpreter immediately replied, "No, he has nothing to add thanks." I have to say that I was rather happy with this response and on the basis of the Clients admissions to me previously this response did not damage his case at all.
As a result of the admissions the Client was given a Police caution, although if he had carried on talking he could have been charged with wasting Police time!
Friday, May 27, 2005
I am struggling to see why this footballer has been granted a representation order, and I accept that I am a little ignorant of the full details of the case. It has been suggested to me that he has been granted a representation order on the basis that a football banning order may be made. How ridiculous is that suggestion? I cannot see a Magistrates Court ever banning a professional footballer from a single or multiple football ground because football banning orders were not meant to deal with incidents on the pitch. Also I think that there are some fundamental human rights issues at stake if the chap is then given a sentence which denies him the ability to work in his profession.
Back to the point: if this man is on wages of £40,000 per week why has he opted to be represented on the basis of legal aid? There is currently no bar on a representation order being granted on the basis of means - this is due to change in the near future. Every solicitor should advise Clients on the availability of legal aid, and perhaps that is what has happened with this case? Who knows?
I would expect that the footballer is going to require a good level of service and his case will come attached with media hype and interest. What on earth is the solicitor instructed in this case doing? Why has he not advised on the availability of legal aid, then reinforced the moral point that those who can for their own case should (after all if he is acquitted he will get that money back), and then suggest that he would get a better service without legal aid as he could then spend hours of time on the case doing excessive amounts of work that the Legal Services Commission would consider to be unnecessary for the purposes of legal aid. For example the solicitor could instruct an expert on behaviour, or the effect of a crowd on the way in which someone reacts, these reports would be considered unnecessary if legal aid were being used.
I do not know the solicitor who has been instructed to deal with this case but I consider him to be mad. Mr. Diouf could probably use a weeks wages to employ a solicitor to work on his case for an entire year if he paid privately. This case seems to me to be a waste of public funds.
Thursday, May 26, 2005
I arrived nice and early, at 9.45 am (this Court does not start sitting until 10.30 am). I then had to wait until 10.20 am before the Court room opened it's doors. I spoke with the Usher and she told me that there were only 6 cases on her Narey list. All the other matters listed in the Court were cases previously before the Court and they all had a representation order in place.
By 11.00 am the final case on the Narey list was snapped up by a solicitor who had attended to deal with his own Client. I then asked the Scheduling Office if there were any other additional matters to go in to Court, I was told yes and that those cases were also covered by other legal representatives who were already in the building.
Just after 12.00 noon I was released from the Court having represented no defendants at all. When I was released the District Judge said to me, "Not a very profitable day for you then?" I replied that as I was paid the same rate for sitting on my backside as I would be if I was dealing with ten custody cases I was not too unhappy. Of course I would have preferred to pick up a few on going cases with representation orders but that is the wonderful way the Court Duty Solicitor scheme works in this particular Court, some days you are overrun with Clients and on others you see no Clients.
Things have not yet got to the stage where I have e-mail contacts to liase with members of Court Administration staff or people at the Crown Prosecution Service directly yet. But technology is moving on.
I have a case in which there is some 3,500 hours worth of CCTV evidence. The Prosecution kindly served the CCTV footage in a digital format by putting it on to an external hard drive and serving an external hard drive. I am impressed by this level of service, the only problem is that it has caused problems for solicitors of the co-defendants. After being given permission to copy material from the hard drive some of the solicitors for the co-defendants were completely stumped as to how to copy the material. In fact the trial date was nearly vacated because applications for prior authority to the Legal Services Commission to pay a 'computer man' to copy the material were refused. I found this rather amusing as I am quite able to extract the material and burn it to a DVD myself.
The average age of a criminal solicitor is on the increase as there are fewer and fewer young people entering the field of criminal defence. If the age continues to rise I am starting to wonder if new technology is going to cause problems rather than assist. I am not suggesting that generally the older generation has no idea how to embrace or use new technology but in my experience in this particular case technophobes have caused a problem and those technophobes happen to be the older solicitors!
Wednesday, May 25, 2005
I arrived at Court today to find the Client had not arrived. I then dealt with another matter and then discovered my Client had arrived intoxicated and been ejected from the Court. Again this case has been adjourned - I am starting to wonder if this case will ever come to an end.
Today's amusement was at a pupils expense today. The unfortunate pupil was representing a defendant in custody who was appearing for the second time. When the defendant was brought in to Court the barrister said to the District Judge he had been unable to arrange a security or a surety and he was therefore looking for an indication from the District Judge that if he did not apply for bail today that he would have the District Judge's permission on the third appearance to make a bail application. The response was short and sweet, "What!? No. Are you applying for bail today or not?"
Then came the next error. Counsel then made a bail application pointing out that the evidence was weak. But the evidence was only weak because the Prosecution had said that the Defendant was linked to the crime by DNA and the Prosecution had not served any such DNA evidence? The District Judge launched in to one of her verbal assaults again stating that she was entitled to consider any evidence that the Prosecution claimed to have for the purposes of a bail application and the mere suggestion that the Prosecution had not served the DNA evidence was insufficient to sway her at a bail application. Now the error in this scenario was Counsel continuing to try to refer to the weak Prosecution evidence of DNA, and each time this was mentioned the District Judge verbally berated him. I chuckled to myself in some kind of evil fashion each time Counsel referred to the DNA evidence.
The case has now been adjourned for committal - perhaps Counsel might want to mention the lack of DNA evidence at this hearing instead.
Tuesday, May 24, 2005
I do not oppose change, but I have just about lost all patience with the current Government and its continual interference with the criminal justice system. Since the current Government came in to power it has made so many changes to the criminal justice system it is impossible to keep up with them. In fact the Government has got so sloppy in bringing new laws in to force many new laws are coming in to force without the Government publishing the fact that those new laws are now in force! The latest parts of the Criminal Justice Act 2003 were due to come in to force at the start of April 2005 but they were not brought in to force until the start of May 2005. The Government made a very quiet announcement about these new laws coming in to force and failed to publish the statutory instrument that actually brought the new laws in to force until after 9th May 2005! I wandered around Court on the date that the latest new parts of the Criminal Justice Act 2005 came in to force and enquired whether any colleagues at Court were aware of the changes, many knew nothing about it!
The current Government make many changes to the criminal law after consultations. But it is virtually impossible to respond to every consultation paper that is issued because there is such a flood of them it would take someone with a lot of spare time on their hands (and quite frankly criminal solicitors do not generally have much spare time working a full Monday to Friday week and then having to cover night time call outs to Police Stations and represent Clients at Court on Saturday mornings if they have been kept in custody by the Police and charged with a new offence) to respond appropriately.
I have to some extent keep myself updated on changes in criminal law by ensuring that I read current journals and generally keep my ear to the ground. If I made no effort to keep updated I have no doubt that a change would be implemented that I may be unaware of and then I would come unstuck at Court or at the Police Station!
Ken MacDonald QC has come up with a good idea but at this moment in time I hope that the Government ignores his suggestion so that I can first catch up with changes already made to the system before I have to deal with any future changes!
Monday, May 23, 2005
I approached this visit with my usual mindset of being broadminded and open to dsicussion - afterall it is not for me to tell Clients how to plead, it is for me to advise and for them to decide how they will plead. I sat down with the Client suggested that he should consider entering a guilty plea because the evidence was so strong againt him that he had such a small possibility of being acquitted. I was then told that the Client did not want to plead guilty and he confirmed the instructions that he had previously given to me. We started to discuss the case in general when the Client suddenly turned to me and said, "Do you believe me?" This is always a great question to be faced with, and it is much like the question your partner might say to you, "Does my bum look big in this?" There is no right answer to give, and any answer that you do give is likely to offend. I said to the Client that it was not important whether I believed him or not it was the jury that needed to be convinced and they were the ones that had to believe him. If I told him that I did believe his account I could be accused of being biased and not looking for the weaknesses in his case. If I told him that I did not believe him he would probably loose confidence in me dealing with his case. Fortunately the Client liked my explanation and we moved on in our discussions.
I did once get asked this question by a rather difficult Client. I gave the same answer as above explaining that it did not matter whether I believed the Client or not. On this occasion the Client got fairly angry and took some time to calm down.
I guess that I could lie in all cases and answer the question in the affirmative for an easy life. To be honest I try not to form an opinion on whether the Client is telling the truth or not as forming such an opinion would probably blur my objective perception of a case. I have to play Devil's Advocate in all cases to consider the prosecution case. Ultimately the truth is rarely important, what matters is how good is the evidence that either side presents?
Friday, May 20, 2005
I received a call last night about a Client who was a youth and who was at the Police Station. I was able to discuss the matter over the phone with the Officer in the case and he said that an appropriate adult would be at the Police Station at a certain time and he asked me to attend at that time also. I arrived on time to find that the appropriate adult was not there and was now refusing to come to the Police Station. Due to the late hour of the evening (or early hour of the morning) there was no prospect of finding another appropriate adult so the Police decided it was an appropriate time for my Client to enter a sleep period!
I have a lot of respect for the people who volunteer their own time to serve on volunteer appropriate adult schemes - I find that these appropriate adults will usually do their utmost to get the case moving to get the Client out of the Police Station. What I really dislike are the appropriate adults who just do not care and will not inconvenience themselves for the benefit of the youth.
My saga with the appropriate adult resulted in my Client remaining in custody for nearly 18 hours until an appropriate adult was eventually found. 18 Hours is quite unacceptable for a youth to remain in custody at the Police Station for a minor criminal damage matter.
Thursday, May 19, 2005
This situation could have been a lot worse as the Clients friend dealt with the situation as the Court staff seemed to be unable to decide who was their First Aider and they were unable to locate the person they thought was likely to be the first aider!
I do remember and incident when I was involved in a trial about a year ago. I was in a Youth Court and a witness for the Crown had just given their evidence-in-chief. I was aware that the witness was deemed 'vulnerable' and that she had epilepsy. I was being as pleasant as I could in cross examination and as I was looking down at my notes I heard a noise. This noise was in fact the witness keeling over in the witness box and having a fit. It was rather unfortunate that the witness box was small and made out of wood.
Todays Client was very apologetic about her fit. The Client did say that the stress of Court is likely to have contributed in bringing the fit on, so it looks like the trial will be fun!?
I attended at a local group meeting this week which consisted of partners or representatives from many crime firms in my local London Borough. The group had previously drawn up a joint response to the consultation paper and the final version has now been signed and approved by many of the firms in the Borough. Our meeting was fairly short and sweet. I actually felt quite positive about fighting competitive tendering whilst I was at the meeting. I was told that similar groups to my local group had been set up all over London and that the groups were being loosely co-ordinated by the London Criminal Courts Solicitors Association.
If what I have been told is correct the Legal Services Commission can expect a massive response to it's plans for competitive tendering, the majority of which will be negative and will suggest that competitive tendering is a bad thing. There are suggestions that there could be thousands of responses. The responses should form some kind of pyramid. There will be individual responses, firm responses, local group responses, national group responses and at the top of the pyramid there will be a response from the Law Society. Usually a consultation paper from the Legal Services Commission will provoke several hundred responses. I am waiting to see if the number of responses does any better than several hundred. As a profession us solicitors whinge and moan about change, but very few of us actually do anything to force or prevent change.
For what it is worth I have drafted my response to the consultation document and it has been available on my website for others to download for at least a month now (you can see it at www.criminalsolicitor.net). In fact I sent an e-mail to over 400 people inviting them to download the document. I shall sit down over the weekend, make some final amendments to the document and then send it off on Monday.
I will probably find out in July or August how many responses were sent to the Legal Services Commission. I will publically state now that if they receive over 1,000 responses I will go and buy a hat, cook it, and then eat it! I hope that several thousand responses are sent in but I just cannot see it happening.
Wednesday, May 18, 2005
I attended at an East London Magistrates Court recently to deal with a Client who was due to be sentenced for a number of alcohol fuelled public order offences. This particular case seems to have lasted forever. Originally the Client wanted to contest the case. On the day of her trial she changed her plea to guilty. The Client's most recent Court appearance was the third attempt to have her sentenced with the benefit of a pre-sentence report. For various reasons her pre-sentence report has not yet made its way to Court. The incident dates back to July 2004!
On the first attempt to have the Client sentenced she had arrived 10 minutes late for her interview appointment with the Probation Service and was told there was insufficient time to interview her in order to prepare a report. The Client's case was adjourned to obtain the pre-sentence report. On the second attempt to have her sentenced the Probation Service simply failed to offer her an appointment for an interview. Again, the case was adjourned to obtain a report. Most recently I attended at Court to be told although my Client had been interviewed the day before the Probation Service thought that the Client was not due back in Court until next week! Once again the case has been adjourned to get the report.
In view of all of the problems in obtaining a pre-sentence report I would have normally tried to get the Client sentenced without a pre-sentence report. But, as the Court is going to consider custody as their starting point a pre-sentence report seems to be pretty essential. I have my fingers crossed that the report finally gets written and is available for Court on the next date - at least an interview has taken place now.
Monday, May 16, 2005
The Criminal Defence Service Bill scared the hell out of most criminal practitioners last year with the idea that solicitors would be responsible for collecting any legal aid contributions - I think that this idea has now been shelved.
I am not looking forward to the Criminal Defence Service Bill becoming law - and it is not because I am opposed to people paying towards their representation where they can afford it. Unfortunately most criminal clients are not very organised. I can foresee when means testing is brought in that the Courts will grind to a halt whilst the effect of means testing prevents cases being dealt with quickly and efficiently until legal aid has been granted in the case. The average defendant will be arrested, for example say, on a Tuesday, then be charged and bailed to appear in a Magistrates Court on the Thursday. The criminal client is extremely unlikely to suddenly swing in to action and obtain evidence of their financial means which would probably result in them appearing unrepresented on the Thursday. The case can be adjourned for a week with the client being told by the Court to go and see a solicitor. A week later the solicitor can appear if the evidence of the clients means has been resolved and the case can progress. Of course the client might not do anything and then they appear unrepresented again the following week because the solicitor is too scared that his work will go unpaid if he appears at Court without the evidence of the client's means being presented to the Court first!
When I first started working in the criminal defence business means testing existed and people could deal with it because the Court system was not set up to run at 100 mph. Now the Court system has changed and I am dreading means testing. I have my fingers crossed that the Government thinks up some crackpot idea to get round the problems I have highlighted and make the transition in to means tested criminal legal aid a smooth one.
Sunday, May 15, 2005
For what it is worth I cannot see this policy idea ever working. The youths told to wear the uniforms are likely to go to one extreme or the other. Youths may consider the uniforms to be some kind of symbol of achievement that has a certain kudos to it, i.e. that they have committed a crime so bad that they need to be paraded in front of the public. The other extreme may be that the youths refuse to wear the uniforms and are simply returned to Court to be resentenced when they refuse to engage with the community sentence because of a ridiculous uniform.
I really have lost confidence in the Government's ability to formulate decent criminal justice policies. The recent announcement of providing victims of rape, or families of people who have been murdered, with their own legal advice and advocate in Court proceedings so that their voice can be heard was an idea so ridiculous that I nearly fell off my seat when I heard about it. After years of cuts in legal aid, and then more recently comments from the Department for Constitutional Affairs that legal aid needs to be prioritised to serve the needy, I am left asking myself is this 'third' legal advocate not going to cost money and protract cases? Anyway I always thought that the Crown Prosecution Service, Witness Service, and Police Family Liaison Officers were supposed to work in the role of the 'Victim's Advocate'? Perhaps this idea will make the public feel better about the criminal justice system with a 'Victims's Advocate' rather than the criminal justice system simply working.