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!
16 comments:
That is disgraceful! How can you sleep at night knowing that you are helping guilty people walk the streets? The sooner the government abolishes defence lawyers the better... blah blah blah blah blah blah.
Only joking! Well done. I've never heard of that loophole before. I am thick!
When I hear stories like this it makes me wish for you or any defence solicitor/lawyer to be a victim of crime and for the obvious culprit to get off with it, under similar circumstances.
Congratulations on your 'success.'
Nick,
You are not thick, you have just not come across s. 30 of the Theft Act 1968.
Steve,
Like I said above the only reason the Client 'got away with it' was because someone at the CPS failed to fill in a form.
I have been the victim of crime in the past - but who hasn't in this day and age?
I chaired a trial last month where the def. was a Plc. Their experienced Counsel made persuasive submissions on a technicality, backed up with case law, all nicely photocopied for us. We refused an application to amend the summons (to a different defendant legal entity!) and kicked the whole thing into touch.
I heard yesterday that the council are appealing, so it's off to court nest week to do a case steted with the clerk.
Steve,
Two points - 1) If someone was found not guilty of committing a crime against me on a point of law then as a Barrister I may be unhappy but would be hypocritical to be enraged.
2) I assume by your comments that if you were the man in question, you would have rejected the advice given by Gavin and pleaded anyway.
You strike me as a member of the 'Country has gone to the dogs / asylum seekers are bad / Soft on crime' brigade who are all too willing to do anything to save their own skin when they find themself in the dock.
But then aside from appearing in Court everyday, what would I know??
There are much more dangerous criminals on the street than a guy who smashes in a window. Quite frankly, I see your work, Gavin, as a brilliant piece of "lawyering". I can see where defence lawyers can be strange beasts at times and it's easy to criticise them about helping guilty people go free. It's a shame more people don't criticise CPS for often times helping to convict people who are, in fact, innocent.
Elle
Gavin, I can't say that I would applaud the fact that you essentially got a guilty person off the charge. That said I admire your legal knowledge to do so and the fact that you would let others know. I am curious what other offences was your client charged with? With regard to the CPS, no doubt a junior representative picked up the file in the morning and paid no attention to the content. As you quite rightly state it's their fault not yours.
Equality of arms - a well briefed defence lawyer outguns the Crown every time in volume crime cases. Churn, churn, churn - keep the crappy little cases churning and send a CPS agent who has trouble finding their way out of bed in the morning, let alone finding a reference in Archbolds. Legal Aid - what a wonderful world you lawyers occupy!
a cps lawyer writes..
S.30 doesn't seem to apply - it's an ex-wife rather than a wife, and S30(4)(a)(ii) applies ie no obligastion to co-habit. Do the prosecution really need DPPs consent?
Sorry, I have muddied the issue slightly by using the phrase ex-wife. Both my Client and the victim were still married at the time of the offence.
I do not undertand your point about s. 30(4)(a)(ii). This section states that the consent issue will not apply to proceedings where a judicial decree or order has been made.
Hi,
this might seem like a very trivial question, but if u are convinced that your client is guilty of an offence, say "handling", can you still act for him?
thanx,
Sam.
Gavin, where are those infinite resources available to the Crown that you speak of? You have been watching too much CSI! Wot Mr. Rant said.
Maybe infinite resources is a bit too dramatic, but the CPS is certainly not short of funding. When have you ever heard of the government trying to cap the amount of oney going in to the CPS? Now us on the defence side have to contend with Lord Carter and his ideas on how to squeeze more work out of legal aid at better prices.
I actually found this blog by mistake while looking for the Theft Act 1968 for my A Level Law qualification.
Firstly I would like to say, I find theft fascinating, and
Secondly I would like to say, having looked at work done by prosecutors and defence lawyers...you both work very hard and I understand you are working for the case you are doing regardless of anything else.
so if anything else...Job well done on your count :)
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