Thursday, June 30, 2005


In every Crown Court case I hold a conference with Counsel to at least give the Client an opportunity to meet the barrister that will deal with their case at the Crown Court. When I arrange these conferences some Clients choose not to attend, and some do attend - and then there are cases where I even have conferences with just Counsel and myself.

Tonight I met with Counsel for what I would describe as an emergency conference. My Client is accused of a riot and is in custody. He is currently on trial. The Prosecution have served me with 3,500 hours of CCTV footage, but as I am subject to an undertaking I cannot give this CCTV footage to Counsel. Today a witness claims my Client has done something naughty which can only be verified by watching the CCTV. I attend for a conference and we watch CCTV for an hour and a half, and guess what, the witness has not been very truthful. The CCTV shows my Client was not even where the witness said he was!

I had also arranged to hold a normal conference for the Client to attend at, did they attend? No.

At 7pm my working day finished when Counsel took me to the pub for the customary beer that barristers buy solicitors for referring work to them. After a long day that beer tasted good.

Wednesday, June 29, 2005

Busy Day Tomorrow

I have a choc-a-bloc diary for tomorrow. I have a bad character application to oppose in a Youth Court at 10.00 am. I then need to get to a Magistrates Court that is very close (10 minutes by bus) for a sentence and a pre-trial review. Once I have finished in the morning I have two appointments in the afternoon for video identification parades at the Police Station.

Why have a I got a choc-a-bloc diary? Basically because work often goes in peaks and troughs and I am encountering a peak where I cannot get others to cover my work because they are busy themselves. Hopefully my appointments will be made easier by the fact that I have met every single Client so have a good memory of their case and the issues involved in their case. The 'personal' touch should keep everyone happy as well.


Waiting is a horrible part of my job that I just cannot get away from. Waiting can be caused by many factors, here are a few examples of waiting:

1. Client does not arrive on time. Untimely Clients drive me crazy as their untimeliness usually disrupts the rest of my day, even where I have accounted for some element of time slippage. Last week I was at an East London Magistrates Court dealing with a number of matters. When I had dealt with the Clients who had turned up I made some enquiries where my missing late Client was. When I spoke to him on his mobile phone he told me that he was on his way, but had got up late. He only arrived one hour and forty minutes late. His late arrival was compounded by the busy Court list and I did not finish at Court until late in to the afternoon.

2. Waiting for the police to make a decision. After most Clients have been interviewed at the Police Station the Police have to seek advice from the Crown Prosecution Service as to what they do next. Normally after a wait of between one hour to two hours the CPS respond and do exactly what the Police Officer wanted to do had the decision been his to make.

3. Waiting for the CPS to serve papers in s. 51 cases. It drives me up the wall when the Crown Prosecution Service do not serve the evidence on cases that have been sent from the Magistrates Court to the Crown Court. In the past month I have had a glut of cases where the CPS were routinely making applications to extend the time for service of the case papers after the original date for the papers had long gone! Case law states that the CPS can serve their papers late and there is virtually nothing I can do to stop it.

Tuesday, June 28, 2005

Day Off

I had a day off from the office today. Just the one day off. Despite my day being booked off six weeks in advance I still received a massive number of phone calls from people oblivious to the fact that I did not want them phoning me!

It seems that the only way to avoid work if I am having a day off is to turn off my mobile phone. But I do not really want to do this in case I get some kind of urgent phone call about an unexpected arrest, or something similar. Perhaps I am just a sucker for punishment?

I recall as a trainee I had a summer holiday abroad and took my mobile with me. During the second week of the holiday I had a call from one of the partners telling me that I was not to go to the office when I came back from holiday as he had a string of outdoor appointments for me to go on. He then gave me details of the appointments.

Monday, June 27, 2005

Part Heard Trial

I really dislike trials going part heard. It is sometimes difficult to be an advocate in a trial and trying to keep a detailed but concise note of the proceedings when you are cross examing a witness. The problem of note taking is ten times worse when you have to rely on your notes for the second part of a part heard trial. You have to read your notes and recall the words of the witness despite not having the opportunity to write a verbatim account of their evidence other than recording a few key statements.

Oh joy, I have a part heard trial to finish today.

Friday, June 24, 2005

Job Advertising

No matter how loyal a criminal solicitor is they all seem to check the job pages in the Law Society Gazette. As the Gazette comes as part and parcel of a practicing certificate that all solicitors are forced to buy each year all practicing solicitors get the Gazette.

Last week my firm decided to advertise for some positions in the crime department. The Human Resources department in the firm I work for seems to have a mind of it's own. After creating an aesthetically pleasing advert they then placed the advert amongst the other corporate advertisers. Everyone who works in legal aid avoids the flash and glossy looking adverts in the Gazette because they know all the legal aid positions are advertised in the rear of the Gazette under the normal black and white text ads.

I wonder how many applicants we will get from our badly placed advert?

Thursday, June 23, 2005

The Trial That Never Ends

I am representing a Client who is one of seven Defendants accused of riot. The trial was supposed to start promptly last Monday as there had been up to ten case management hearings and mentions to ensure that the trial would be ready in time for the fixed date set aside for the case.

Since last week I have received daily phone calls from Counsel saying, "We have still only had one hour of evidence. One of the Co-defendant's Counsel has made some spurious application because they are not well enough prepared."

It is expected that this trial might really get underway next week, and I sincerely hope it does otherwise it will be the trial that never will never end.

Tuesday, June 21, 2005

Bail Refusal

I have just come out of a Police Station where a Client has been refused bail. The Client was a youth who had been arrested for possession of cannabis, who made full admissions, but who could not be given a reprimand or a warning because he was a persistent young offender.
A wet behind the ears Police Constable then suggested on charge that bail should be refused as my Client had been charged with the same offence 10 days before, and because he had breached a supervision order two months ago. He suggested that this amounted to evidence that further offences would be committed prior to the Court appearance.

The Custody Sergeant was having none of my bail representations and took no account of the fact that my Client had no antecedents for offences committed whilst on bail, or even failing to appear. I felt like I was talking to a brick wall and after ten minutes I stopped talking to be told my Client was to remain in custody.

Once my Client had been locked up in his cell the Custody Officer then had the cheek to ask me to repeat my bail representations as he had not been listening to what I had said!

Monday, June 20, 2005

Bad Character

I have been inundated with bad character applications recently where the Prosecution are applying to have my Client's previous convictions made known to the Court of jury during the course of the trial. I have replied to each one in writing and have been dutifully waiting for the Court hearings to take place to deal with the issue of bad character prior to the trial.

Last week I had an application to deal with but as the Client's had been deported there was no point dealing with bad character as there was not going to be a trial.

Today I turned up to Court and it would seem that my forceful written submissions in replying to the bad character application had struck a chord. The Prosecution wanted further time to obtain a statement for the case that related to my Client's one and only conviction. I had suggested that it was woefully inadequate for the Prosecution to rely on a case summary and Police report, written before my Client had pleaded guilty to another type of offence, to suggest that his bad character should be known to the Court for having a propensity to commit an offence when the previous conviction did not suggest any element of propensity for an offence like the one he would soon go on trial for.

Despite me best efforts the Prosecution were given an adjournment to get their application in order. I pointed out to them that they might want to consider discontinuing my Client's case also as he was going on trial for a robbery where he had not been identified by the robbery victim as having committed the offence.

Advice To Magistrates

Court Clerks in the Magistrates Courts are uniquely placed to advise the Court on issues of law. If lay Magistrates are sitting the Clerk will often advise the Magistrates on what their powers are. Today I appeared in front of a lay bench dealing with a routine guilty plea to a fairly low level of benefit fraud summonsed under s. 111A of the Social Security and Administration Act 1992.

I stood mitigating on behalf of my Client suggesting that the facts and mitigation involved in his case put it within the realms of a community punishment. As I uttered the words, "...guidance from the Court of Appeal suggests this is a case suitable for a community penalty..." the Court Clerk nodded his head. When the Magistrates agreed with me that a pre-sentence report was required they adjourned the case. The Court Clerk then spoke out saying to the Magistrates, "Are you adjourning keeping all of your sentencing options open including a committal to the Crown Court?" Having heard the Learned Clerk speak the Chairperson replied, "Yes, and we are keeping all of our sentencing options open including a committal to the Crown Court".

If the Clerk agreed with me on the point that the case was always going to be sentenced to a community penalty why did he bother to speak out at the end?

Sunday, June 19, 2005

To B, Or Not To B, Or Maybe To C

I read an article in the Independent today that suggested that our current Home Secretary is likely to reclassify cannabis as a class B drug after it was recently reclassified as a class C drug. This is potentially another great cock up by the Home Office. The suggestion is that if cannabis use has increased since it was reclassified then it should revert back to it's old status to stem to increase in use.

Do the Home Office not realise that their continual meddling in our legal system costs a lot of money every time they try to adjust the law? The law has already taken in to account that sentencing for possession of cannabis should be reduced from the previous sentencing guidelines to take account of the change in maximum sentence that you can get for possession of a class B drug and possession of a class C drug - here is one example R v Herridge. No doubt the costs in getting a case all the way to the Court of Appeal is not cheap, and it was probably paid for out of the legal aid budget. Mr. Clarke, and any other Government Minister who may be reading this, stop playing around with the system to create more work, and stop blaming solicitors for increased costs to the legal aid budget! This is a clear example of the Government seeing that an error has been made with their reclassification policy, and that it is now time to decide if they can afford to make a U turn.

Friday, June 17, 2005

CDS Direct

Police Station cases arise at any time of the day or night so generally as a criminal solicitor you get used to phone calls in the middle of the night, or calls at 5.30 pm on a Friday evening, requesting your services at the local Police Station. The Legal Services Commission dreamt up an idea last year where they wanted to take over the bulk of the work in dealing with phone calls from the Police Station so that solicitors would not be bothered by Police Stations until the Police Station needed a solicitor to get down there.

This is all very generous of the Legal Services Commission but the whole scheme is flawed and solicitors are up in arms now that the Legal Services Commission want to run a pilot of the scheme in October this year. If I am acting as duty solicitor for a period of time I am able to plan how each case will be dealt with as they are phoned through to me, i.e. I will know when the interview is likely to take place so I can arrange for myself or a colleague to attend. The LSC want a system where the Police Station calls them and they give advice over the telephone to the person who has been arrested, and then when an interview is going to take place the LSC will phone a solicitor and say, "Can you get to the Police Station for an interview in 45 minutes?" As these phone calls will come out of the blue I expect many of the solicitors will say that they are not in a position to attend at such short notice.

As I was feeling a bit militant today I e-mailed a number of people to see if any action could be taken in the areas where the LSC want to run the pilot. It had been suggested to me that one way to fight this flawed system is for solicitors to simply not accept the work that comes through the CDS Direct scheme, and hopefully after a period of time the scheme would be forced to come to an abrupt end. The problem is that the LSC are going to run the pilot in two very well chosen areas. Firstly there is Boston (Lancashire) where there are insufficient duty solicitors to adequately deal with the work available in the area - they are looking forward to some form of assistance with their heavy work load. The second area is Liverpool which has a large Public Defender Service presence which could probably cope pretty well if the solicitors in private practice refused to accept work from the CDS Direct scheme.

So what's going to happen with this CDS Direct pilot then? Well it is going to go down as a success in Boston just because they need the help there anyway. The system will probably not work very well in Liverpool but it will save the Government money as a shoddy service is provided. So all in all I expect that by 2006 the CDS Direct scheme will no longer be a pilot and they will be phoning me at all times of the day asking me to get to the Police Station - I expect that my response much of the time will be sorry I am already at Court, or sorry I am seeing a Client right now. This ridiculous immediate attendance idea is going to drive the system out of control.


I rarely read Hansard because it usually involves people talking about issues that they actually know nothing about - afterall there is very low public trust in members of Parliament. My attention was drawn to a particular debate held in the House of Lords and recorded in Hansard over the weekend. Yesterday I looked up the debate as it was talking about the Criminal Defence Service Bill (new legislation to reintroduce means testing for criminal legal aid i.e. if you can pay for your own solicitor you will have to).

I read what I considered to be very unfair comments made by Baroness Ashton a Minister of Constitutional Affairs or was is Legal Aid? They were talking about the rise of the criminal legal aid budget and talking about solicitors basically taking everyone for a ride with long trials. I then read some excellent replies to these comments where various peers slated the Government for its uncontrollable wave of criminal justice legislation that increases costs in criminal cases. A few of the peers responding even threw in a few comments about the sad state of affairs for barristers fees.

The real point about the debate was that everyone, including myself (and I think most of the legal profession) all think that people who can afford to pay for a solicitor should pay, and that the legal aid budget should be reserved for deserving cases. All the peers that spoke up in the debate agreed that means testing was a good idea and the Criminal Defence Service Bill is unlikely to be opposed in it's passage to reach the statute book. What the debate seemed to be about was taking a pop at the Government for the mess it has made of the legal side if the criminal justice system.

If Hansard was always this interesting I might read it more often.

Thursday, June 16, 2005

Waiting For The Call

I am on duty tonight meaning that I am the Duty Solicitor for a busy London Borough between 3pm and 11pm. If anyone is arrested during this time and they request a solicitor, but do not know a particular solicitor to use, I will get a phone call.

It is sometimes disheartening to be 'on duty' as you often wait for a stream of calls, and put off doing other things to ensure that at the drop of a hat you can attend at the Police Station immediately. Admittedly I do not have to sit in a particular location or actually wait at the Police Station during the time I am on call. I just need to somewhere with my mobile phone in case I am needed. If I am on duty over a weekend period it can be really frustrating. I cannot really go out or get involved in long activities in case I get a call. I enjoy going to the Police Station I just do not like waiting around.

So I shall come on duty whilst I am still at work. Hopefully I will get a number of calls and be out at the Police Station before 5pm. I bet what happens is I get a phone call about 10pm, and then have to go out to the Police Station about 3am!

Wednesday, June 15, 2005

Trial Preparation - The Trial

I attended today at the trial I mentioned yesterday and sat around waiting for my Clients, they did not attend when they should have done so. The Prosecutor told me that she was going to make an application to proceed in the Client's absence with the trial. After the Police witnesses eventually turned up I was left with the decision to make: do I remain and continue to represent the Clients on the basis of my limited instructions, or do I do the usual thing and withdraw from the case so that no blame can be laid at my feet if the Clients are convicted? I decided that the instructions I had were enough to challenge the prosecution witnesses and where I had points to make about the evidence not proving the offence, rather than trying to put another account to the witnesses, I felt that my Clients' case had suddenly improved - I was looking forward to a trial that the Clients could not spoil!

Then disaster struck. As we were 15 minutes from starting the trial the Police liaison Officer came in to Court and told everyone that my Clients had been deported and were no longer in the Country! The case resulted in the Prosecution offering no evidence as they could not have a trial if there was a good explanation why my Clients were absent.

Tuesday, June 14, 2005

Trial Preparation

I enjoy doing advocacy, and trials in the Magistrates and Youth Courts can be quite good fun. I am sitting here preparing for a two handed Youth Court trial where I am going to represent both Defendants.

I have been looking at this case for the past hour. I have Clients who have previous convictions for dishonesty matters and there is an application to adduce that bad character in evidence. The trial involves a matter of dishonesty. I think I will be unsuccessful in excluding the evidence of bad character.

So far all the instructions that I have are the brief comments that I was given through an interpreter at the first hearing. These particular Clients have, for some reason unknown to me, not to bothered to turn up to their appointments.

The prosecution case looks quite strong. A mobile phone has been stolen from a table in a public place. My Clients are alleged to have taken the phone. The person who lost the phone did not see it taken. The phone was never recovered so he could not say if one of my Clients actually stole the phone. My Clients were seen to run from the area but when stopped they did not have the mobile phone on them. So far so good. But, a Police Officer has given a statement saying that he watched my Clients walk up to the table and take the phone. Another Police Officer has said that he saw a silver shaped phone like object fall out of one of my Client's pockets as he ran from the scene. Neither Officer sees what the other officer has observed and recorded in their statement.

Taking my brief instructions in to account I think that I will need to punch a hole in the Police Officers accounts. If doubt can be thrown on to the fact that no one knows that the silver object was that fell out of my Client's pocket was a mobile phone there may be enough room for doubt - and hopefully an acquittal.

Trial preparation is all well and good but I will be limited by any instructions that I get from my Clients. Also there is an old adage, "The defence case is always at its best at the close of the prosecution case". That is because Clients have a bad habit of saying the wrong thing when they give evidence!

Pleading Guilty

Life would be so much easier for us criminal defence lawyers if Clients did not fear going to prison. If that were true I am sure that more Clients would plead guilty to offences where the evidence was overwhelming rather than try to convince themselves and others that they were innocent in order to avoid prison. I spent the afternoon today with a Client who gave instructions and we spent a long time going round in circles - he accepted that the evidence was likely to lead to a conviction but he did not want to plead guilty as that would probably result in a prison sentence. He seemed quite happy to plead guilty provided that I could guarantee that he would not go to prison.

The Client left my office considering his options - my feeling is that he will plead not guilty and hold on to a faint glimmer of hope that he will not be convicted.

Friday, June 10, 2005

Why Bother?

As a criminal solicitor I frequently get calls from the Police Station informing me that Clients are in custody. Some of these Clients will be 'own' Clients so they are either known to my colleagues or me, or they are 'duty' clients meaning they have been forwarded to me by the Duty Solicitor Scheme and I have probably never dealt with them before.

Many Clients want legal advice when they are detained at the Police Station. Some have never been arrested before, some are old hands. Some speak to a Solicitor and then want the Solicitor to attend at the Police Station. Then there are those people who speak to a Solicitor, say that they want them to attend at the Police Station and then change their mind.

I often ask myself why did they bother to ask for a solicitor if they did not want them to come to the Police Station? I realise that some Clients feel once they have spoken to a Solicitor that they are able to deal with the case by themselves. But if the legal advice is free and the only real cost to the Client is waiting time for the Solicitor to attend why would they refuse a Solicitor?

Over the past month I have had two Clients where this situation has arisen. In both cases I was referred the case by the Duty Solicitor Scheme, and in both cases I spoke with the Client when they were initially detained at the Police Station. Subsequently in both cases I received a further phone call saying that the Client no longer wanted a Solicitor. The first case I could understand, the Client was described by the Police to me as a traveler and he had been arrested for handling stolen goods - he had been arrested before and for the exact same scenario many times. The second case was a little more bizarre. The Client had been arrested as one of a number of Defendants for conspiracy to supply class A drugs and money laundering in a National Crime Squad operation. Why the second Client declined a Solicitor to attend at the Police Station was beyond me as that Client was clearly in danger of going to prison for a very long time. The second Client's reasoning for declining a Solicitor was even more bizarre when you consider they had already had a different firm of Solicitors attend, and then withdraw from the case.

If the advice is free why refuse it? If you were offered a plumber to fix a broken water pipe for free would you refuse their services? I wouldn't.

Thursday, June 09, 2005

Police Station Disclosure

I went off to a Police Station the other evening and dealt with one person involved in a three handed case for possession with intent to supply drugs. The Police were being cautious with their disclosure and provided me with a typed sheet.

Initially I spoke with a TDC who was giving verbal answers to the majority of my questions on disclosure (this was in addition to the typed disclosure). She even gave me the premises search book 101 to look through. Her colleague then joined the room and her answers to my questions changed to: "I believe you have been given sufficient disclosure".

I was quite keen to know what the two other Co-defendants had said but the Police would not disclose what they had said in interview. I then had a consultation with my Client and the interpreter who had been assisting the Police with all three Defendants. I sat down and obtained full details of the case from the interpreter. The Police were quite surprised to learn in the interview that I had full knowledge of the Co-defendant's accounts but they should have foreseen that the interpreter was going to spill the beans and it was pointless trying to withhold disclosure from me.

Wednesday, June 08, 2005

Listing Madness

The wisdom of some listing offices is beyond my comprehension. I attended at a Youth Court recently to deal with a trial that had been previously adjourned due to lack of Court time and that was listed to start in the morning and possibly last three quarters of a day.

When I got to Court I was told that in my same Court there were two other trials and six pre trial reviews all listed as hearings to start in the morning. Why did they do this? Who knows.

Eventually my trial started at 11.55 am and after the lunch break we adjourned the case part heard about 5.00 pm - now if we had started at 10.00 am like we were supposed to the trial would have been finished in one day.

Tuesday, June 07, 2005

Wasting Public Money

A Crown Court case that I have been dealing with since it's beginning carved today. The case was destined to carve from day one but the case had been so poorly investigated and prosecuted it was difficult to know if the Prosecution would get it's act together in time for the trial to prove anything.

The case was being prosecuted by the Department for Work and Pensions, and they made a right shambles of the initial investigation. They carried out surveillance and failed to take witness statements from people whom the Defendants came in to contact with. They seized a great deal of financial details for bank accounts but failed to check the accounts thoroughly for fraudulent activity. One thing that I noticed was that there was a four month break in the surveillance, presumably as there was a lack of overtime for the investigation!

To cut a long story short the Department for Work and Pensions Investigator estimated his costs to be in excess of £100,000. Now that is a lot of money to be spent on behalf of the tax payer to investigate and prosecute benefit fraud. What did £100,000 get in terms of convictions? Well it got convictions for three people for a mixture of benefit fraud and deception offences amounting to £1,500 for each Defendant.

Whoever was responsible for the investigation of this case at the Department for Work and Pensions should have a good look at what they have achieved with this particular case. The money spent here could have been spent far better on other matters, such training for the investigating officers!

Monday, June 06, 2005

Barristers Going On Strike

There have been reports in the press again that barristers are planning a strike due to fee payments. This is a story that has been lurking for sometime as barristers have been caught between the 'cab rank' rule (the principle that if they accept work they accept to deal with all of the case) and new plea and case management hearings. Basically barristers are being asked to do more work for less money, and in doing the new work they are likely to do less work generally because they are involved in these longer new style hearings.

I have heard of rumours of barristers striking at different Crown Courts over the past few weeks. It now seems that all barristers practicing in crime are going to strike together. The strike action could seriously affect cases and effectively bring the criminal justice system to a standstill. But for what it is worth I applaud the action taken collectively by the Bar. They have shown in recent months that they are well organised and can act together without squabbling. I think that they have a real issue that needs to be dealt with but I can see Joe Public whinging saying that fat cat lawyers are protecting their own interests. Well the truth of the matter is that they are trying to ensure that they do not suffer from what is nothing less than a wage cut.

I am jealous of the fact that the Bar are so organised and when they decide to strike they strike together as a body. Us solicitors are in trouble over criminal legal aid and there have been a number of meetings or rallies but I doubt for one moment that you will ever so us strike together as a body. If we were able to organise ourselves we may have prevented the damage that has already been done to the criminal justice system.

Friday, June 03, 2005

Foolish Applications

I dragged myself down to a Crown Court recently to be present for the final trial readiness hearing before the trial starts next week. I wanted to be present for the hearing along with Junior Counsel to ensure that everything was running fine and that there would be no hiccups when the trial started. I had some concerns not so much about my case but whether the other Co-defendant's representatives were ready for trial.

I had experienced trouble trying to get another case listed for mention in the Crown Court I attended at because of the particular multi handed case that was in for a trial readiness hearing was expected to take up some much of the cell space and Court time in the Crown Court. The case was listed for 10.30 am and we did not get called on until 3.30 pm - now that was a waste of time, and a pretty expensive waste of public funds. There were a total of 21 people including barristers, solicitors, solicitors reps, CPS reps, and Police Officers all kicking around from 10.00 am until 5.00 pm.

Whilst waiting for my case to be called on I sat and observed one of the 'local' Judges verbally berate one barrister for requesting disclosure in opposing a bad character application. The Crown were seeking to adduce evidence of bad character and the solicitors were opposing the application, but before the application could really be dealt with the solicitors were trying to get disclosure of the information the Crown used to base their bad character application on. The information being asked for was a set of statements and case papers for a trial where the Solicitors represented the Defendant who in a previous case the Crown ultimately offered no evidence against because a Co-defendant pleaded guilty. If you are confused by all of this do not worry - everyone these days seems confused with bad character! Back to the point. Everytime the barrister asked the Court to order to Crown to provide the Solicitors with a copy of the statements for the previous case the Judge would say: "Miss X, why are you asking for the statements, your solicitors will already have them as they acted for the Defendant in the previous case?" The answer that was given was always, "Well, I am instructed that they do not have them". This hearing went round and round in circles and eventually the Judge lost his calm composure and told the barrister that the Solicitors had been wasting his time with the hearing and that they should now explain why they should not foot the bill for the costs of the hearing. I sat watching this hearing and could not work out why the barrister had not been told to, or had thought to, phone the Solicitors part was through the hearing and get an explanation why they did not have the papers they were asking for! At least if there was an explanation why the papers had not been archived it would have stopped the Judge coming out with the phrase: "Miss X, why are you asking for the statements, your solicitors will already have them as they acted for the Defendant in the previous case?"

The second foolish application I saw that day was in fact one made whilst my case was being dealt with. Junior Counsel for a Co-defendant stood up and made an application to break a trial fixture that had been fixed for about 6 months ago. The reason for making the application was because Leading Counsel in the case had a problem with their diary and were no longer able to represent the Co-defendant at his trial, so he had sent along his Junior to make an application to break the fixture so that he could be paid for the time he had spent on the case already. Apparently under the graduated fee system counsel can only claim for preparation work in a case that they do not ultimately deal with if an application to break the trial date is made. This information was made blatantly clear by the unfortunate barrister who had to make the application. The Judge stopped the barrister making the application and told her in no uncertain terms that he would report her to the Bar Council for making an application that she knew had no merit if she continued to make the application - she stopped immediately.

Thursday, June 02, 2005

Why Am I Here?

I spent all day in a prison today. I have a fairly long trial coming up and decided to devote my entire day to one particular Client so that I could try to finalise the preparations for his case. In this case I have been served by the Prosecution with over 3,500 hours worth of CCTV footage. I have also been served with a delightful DVD which is about 65 minutes long of specific footage of my Client. I have seen everything that the cameras near to this incident could have recorded. The incident I am talking about is a riot.

I have played the DVD footage to my Client a number of times, and having been through the papers on his case I had some questions to ask my Client about what he could remember from the footage. I played the DVD to the Client today and he gave me the information I needed. My Client then turned to me and said, "Why am I here? Why was I arrested for this?". I replied, "I don't know". My Client was of course asking why was he in prison. There are various reasons that I will not go in to why my Client cannot be bailed. I am still failing to see the strength of the prosecution evidence in this case, maybe I never will - that is why I do not know why my client was ever arrested for this matter.

My Client is alleged to have been one of a group of people involved in a riot. The DVD footage shows my Client wandering around, leaning against several walls, he scratches his head, bites his nails, speaks to various people - what I have not seen on the DVD footage so far is any evidence that he has engaged in activity that could be defined as rioting. In fact I have seen many DVD's in this case and I have seen some awful behaviour and people smashing up property but I have seen nothing to connect my Client to that behaviour/activity. This is one case which I actually feel quite confident that can be won. The Prosecution say that the DVD footage is what they will rely on at trial out of the 3,500 hours worth of footage. They will also rely on witnesses giving their accounts.

What tickled me today was the fact that several witnesses in this case had filled in report forms where they had described the incident that had taken place. There is no dispute that an incident took place, my Client disputes that he was actively involved in the riot. The report forms described the incident in variety of different ways and some of the descriptions given were: a riot, a major disturbance, chaos, and (my favourite) concerted indiscipline. Concerted indiscipline?! My children might be guilty of concerted indiscipline but I cannot see how a riot could ever be described as concerted indiscipline. It will be interesting in cross examination to ask some of the witnesses, "Did you witness the riot? Or did you witness concerted indiscipline?" An answer to the latter should secure an acquittal.

Did I Miss It?

I went to a Magistrates Court today to deal with a Client who had not turned up for their trial and who had been convicted in their absence. The Client had previously surrendered to the warrant issued for his arrest and today's hearing was to deal with an application to reopen his case and to set aside the conviction.

Usually an application to reopen a case will last a matter of minutes as an excuse is given to the Court and it is hoped that the Court will accept the excuse and reopen the case. Today's hearing lasted just short of two hours. My Client gave evidence claiming he had received a phone call telling him he did not need to go to Court from a certain person. The Prosecutor rubbished this account saying the person in question had not been in contact with the Client at all since the proceedings had started. The Client broke down in tears, we adjourned for a short time and came back.

When I gave a short closing speech the Magistrates were about to go out when the Prosecutor stood up and then said, "Oh, there was a telephone conversation. My file says that the Defendant did speak to X". If only the Prosecutor had accepted this earlier!

The Magistrates then went out and after 40 minutes came back with a positive decision to allow the case to be reopened.

Urban Myth

As I sat in Court the other day I exchanged legal urban myths with a colleague, the best one that I was told goes something like this: Counsel for the Defendant is giving a closing speech to the jury at the end of a murder trial where no dead body has been found. Defence Counsel rambles on and then says to the jury I have been stalling for time as any minute now the murdered person will walk through the entrance to the Court alive and well. The members of the jury look around to the door, the Judge looks over and even Prosecution Counsel looks over but no one appears. Defence Counsel continues his closing speech commenting that if the jury were unsure of the Defendant's guilt then they should not convict him, and if they had looked over to the door expecting the murdered person to walk in they should acquit the Defendant. The jury eventually retires and they come back with a verdict convicting the Defendant. After the trial Defence Counsel is in the Judge's chambers and explains that he was surprised by the jury's verdict because looking at the door suggested they had some doubt about the evidence and seemed to entertain the idea that the Defendant had not killed the person as there was no body, and that the murdered person may have walked in to Court. The Judge then states that he too had some doubt, but the Defendant had not bothered to look so if he did not expect the murdered person to walk in why should anyone else?