Thursday, December 29, 2005

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.

Friday, December 23, 2005

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;


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.

Thursday, December 22, 2005

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.

Wednesday, December 21, 2005

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.

Tuesday, December 20, 2005

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!

Sunday, December 11, 2005

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!