Emmerdale

My wife likes to watch Emmerdale on the television and from time to time, when I am not working late, I will sometimes see programmes like Emmerdale on the television.

I watched Emmerdale last night and got rather angry. I am not a good person to sit with when there is some kind of legal drama on the television as I shout out when they have got something wrong.

Last night I chuckled when I saw the Clerk of the Crown Court was wearing a wig like a barrister. Then I chuckled when I saw that the Prosecution barrister was wearing a solicitors robe and not one for Counsel. I then started shouting about the procedures and how the jury had not been sworn. I got angry when the rules of evidence were completely ignored.

My wife does not like watching legal dramas with me. She tells me to, "Be quiet," or from time to time after an outburst I get, "Oh, shut up!"

The Bill is one of the worst culprits for getting it wrong. I cannot recall ever seeing an episode where a defence solicitor was portrayed in a positive light.

Means Tested Legal Aid

A new legal aid system has been introduced, and as from 2nd October 2006 criminal legal aid has reverted to means testing. To get legal aid for a criminal case you now need to pass the interests of justice test and the means test. For the past seven or eight years you simply had to pass the interests of justice test.

What is the interests of justice test? It is simply qualifying the need for a solicitor. For example if you apply for legal aid and there is a pretty good chance you could go to prison due to the seriousness of the case you would usually be given legal aid. Also if your case involved a complex area of law then you may meet the interests of justice test.

The means test is back, but in a new way. Means testing used to exist, but it was abolished because it was believed that means testing was too expensive to actually collect in money that people had to contribute to their legal aid if their income fell between certain levels. I like the idea of means testing, those defendants who can afford to pay for legal services should pay for them. Those Defendants who cannot afford to pay for legal services should qualify for legal aid. The Legal Services Commission has been behind the reintroduction of means testing and they have made a right pigs ear of it.

Here some examples of why applications have been rejected recently:

The form had been filled out in blue ink and not black ink.

The ethnicity part of the form had not been completed to specify the applicants ethnicity

The application of a 12 year old youth had not specified whether or not he had a marital partner

The application submitted before the first hearing did not contain a copy of the applicants previous convictions even though these are not available to defence solicitors until the first hearing

Many defence solicitors, including myself, are aggrieved by the attitude of the Legal services Commission over means testing. They have somehow managed to move the job of processing legal aid applications from experienced Court staff to administration staff who have had no experience of the interests of justice test, or have any practical experience of Court work to know how to apply the interests of justice test.

The real problem with the new means testing scheme is that applications for legal aid cannot always be processed on the first hearing when the Defendant appears in Court. For example, my local Court is served by a central administration office. If I want to lodge a legal aid application it has to be sent through the post or document exchange to an office, I then have to wait two days to find out if the application has been granted. Now this all sounds fine until you realise that there are Defendants in Court without time to make an application for legal aid. If I represent a Client for a matter at the Police Station they might appear in Court within 24 hours having been refused bail by the Police - and in these circumstances I cannot ensure that legal aid is in place before the Client appears in Court wanting to be represented. In reality the Legal Services Commission want solicitors to gamble and to guess when legal aid will be granted. There is no way for me to recoup losses (other than ridiculously small fees) if I have spent the vast majority of my time at Court for a Defendant who has been refused bail by the Police and is also refused legal aid several days later!

The Derek Hills of the Legal Services Commission, and Vera Baird QC of the Department for Constitutional Affairs, have shown utter contempt for legally aided defendants over means testing. There are some very real issues such as young defendants remaining in custody for longer than is necessary whilst legal aid applications are resolved. The UK has a record of locking up a higher percentage of the population than other European countries, we also lock up more of our youths. Means testing is adding to this issue. At a meeting on 2nd October 2006 I was told by the head Clerk that if Defendants have to remain locked up in order to process legal aid applications then so be it.

2nd October 2006 was the date for the reintroduction of means testing, it will go down in my diary as Black Monday.

Where Have I Been?

Apologies to my loyal readers for the lack of posts recently but I have found that my time has been taken up racing all over the place with work, I have been left with little time to tap away at my keyboard to post messages on this blog.

Where have I been in the past two weeks then? I have made three trips to Ipswich Crown court to get a difficult rape trial off the ground. It is often good practice for solicitors who have conduct of serious cases to attend at the first day of a trial to ensure that any pre-trial issues such as disclosure, or last minute conferences between the Client and defence barrister, go smootly. I have been to two very long conferences with Clients and their barristers in London for impending trials. I have visited the Police Station on various occasions. I have been to various local Magistrates Courts defending the innocent and the needy. I am now in the position where I actually want to be in my office for a period of time to finish of administrative paperwork. Today I went off to my local Magistrates Court and dealt with four cases before lunch, I then went to my local prison and spent the afternoon taking instructions from two Clients. I then went directly from the prison to a Police Station and I got home about 9.00 pm.

Victims Advisory Panel - Why?

The Home Office has announced the creation of the Victims Advisory Panel:

The new panel will include people who have suffered from crimes such as burglary, anti-social behavior and hate crime, or who are survivors of victims of serious violent crime.

It will examine the way victims and witnesses are treated and the way their experiences are handled by the criminal justice system, and then make formal recommendations for changes directly to Ministers.

The panel is a critical part of the government's commitment to put victims at the heart of the criminal justice system.

Emotional and practical support
Home Office Minister Gerry Sutcliffe said that, while crime is at record low levels, people are still victimised and their rights must be protected. 'Being a victim or witness of a crime can have a severe and damaging effect. We will ensure that victims have the emotional and practical support they need.'

The panel will work to ensure that victims feel the system is on their side as they go through the difficult process of giving evidence and working with police and prosecutors to ensure that criminals are brought to justice, he said.

Constitutional Affairs Minister Rt Hon Harriet Harman agreed adding, 'Crime victims must get the support they need from the criminal justice system.' The advisory panel, she said, 'will represent the needs of victims, whatever their circumstances.'

Hearing their voices
Kathryn Stone, the panel's spokesperson, is also the chief executive of Voice UK, a national charity for people with learning difficulties who have been victims of crime. She said the panel will provide a critical service.

'Too often the voice of the victim is not heard properly, or not heard early enough. We are looking forward to being the voice of victims of crime at a crucial stage - when policy is first being developed.'

My question is why create such a body? I realise that this post is likely to provoke a nasty reaction from some of the readers of this blog, but I do not understand what our government beleives it will achieve by setting up such a panel. I have read through the proposals that victims should be able to address Courts upon the impact of a defendant's behaviour if convicted, I have also read the proposals that victims should form part of the Parole Board panel that decides if a convicted prisoner can be released from prison. I have yet to see the results of the victims advocate pilot.

The judicial system that exists in the UK has been developed over centuries. One of the key parts to the judicial system is that both the defence and prosecution are adequately represented, and that their submissions to a Court are judged by appropriately trained and qualified judicial office holders. If victims are to be given control of our criminal justice system why have a Court in the first place? Bring back public floggings and hanging. There will be no need for a trial!

Victims of crime deserve to have their voice heard, that is why the Prosecution exists, to put forward the victim's case in Court.

Arghhh!!!

One of my worst nightmares became a reality this week. I had been preparing a matter for a Crown Court trial over the past six months. I had briefed experienced Counsel to deal with the trial. My Client had met the barrister a number of times and was very happy with their service. Everything was looking well prepared and ready for trial.

I got out of my bed and started getting myself ready on the first day of the trial when I received a telephone call from the barrister's clerk. I knew that something would be wrong if I was receiving a call this early in the morning. I was told that the barrister had been injured in an accident and that they were unable to attend Court due to the extent of their injuries. I then said the words, "What are we going to do then?" The clerk said, "I don't know, what do you want to do?" I thought for a short while and then said, "Don't worry, leave it to me".

The case was not the kind of matter where a new barrister could read the papers and be up to speed within a few hours. There was no point trying to get a new barrister to the Court to deal with the matter. I took the matter in to my own hands and traveled to the Court knowing that there would not be a barrister to represent the interests of my Client. On my arrival at Court I spoke with the Clerk who was kind enough to seek the permission of the trial Judge who granted me rights of audience to appear in the Crown Court and represent my Client.

At no stage did I ever think that I should step in the breach and take the case on by actually doing the trial - my point of view was that provided the Judge would give me rights of audience I could then make an application to adjourn the trial in order to arrange new Counsel, allow time for new Counsel to prepare for the matter, and then have a conference with my Client and his new Counsel.

All went well in Court and my trial was adjourned despite the Prosecution barrister being a pedant suggesting that my Client's case could start in the afternoon with a new barrister! I quite enjoyed the experience of exchanging blows with the Prosecution barrister during the course of my application as he had been particularly difficult in pre-trial hearings regarding disclosure.

Once the case had been adjourned I let out a sigh of relief. The nightmare scenario that I had thought about on many occasions had been simple enough to solve. I have now made a mental note that I really should pull my finger out and put the finishing touches to my solicitor advocates portfolio so that I can actually obtain rights of audience to appear in the Crown Court to deal with hearings such as mentions, plea and case management hearings, and trials.

More Doom and Gloom

The Law Society has published a report on the impact that the Carter reforms are going to have on criminal defence work. The Solicitors Journal has published a good article on the bad news that this report delivers:

A report commissioned by the Law Society and published this morning predicts that over 800 legal aid firms could be forced out of business if the reform proposed by Lord Carter goes through as it is. This is twice as many firms as anticipated by Lord Carter.

The report, prepared by LECG, an offshoot of the University of California at Berkeley, warns that typical profits, allowing for all costs, would range from only 2 per cent down to about -6 per cent. By contrast, 'comparative industries' such as financial advisor services, typically expect a ten to 15 per cent profit.

The Law Society states that without higher fees and a rethink of the Carter implementation timetable, the consequences for legal aid will be “disastrous”.

“The Government is trying to make efficiency savings too soon, firms must be allowed to restructure first,” said Law Society Chief Executive Desmond Hudson. “The over-hasty imposition of this change programme on a very fragile supplier base could prove to be disastrous.”

One of the Law Society's biggest fears, backed up by the LECG research, is that no new solicitors will want to practice legal aid work, leading to the reversing of the ageing supplier base. The research highlights a recent survey which found that whilst 60 per cent of student solicitors said they would like to do publicly-funded work, only 21 per cent actually do, due to “perceived low salaries, limited career prospects and poor working conditions.”

Andrew Holroyd, Law Society Vice President, said: “There has been an alarming reduction in the number of law firms doing legal aid work in recent years and there are few incentives for the legal aid lawyers of tomorrow. We will be pressing the government for increases in rates that allow viable businesses to develop and the entire sector to return to health.”

The Law Society is pointing to the recent increase in pay rates for the junior criminal bar and Scottish legal aid practitioners, as evidence there are funds available. It also highlights that the administrative costs for the Legal Services Commission has risen from £62.4m in 1999/2000 to £96.4m in 2004/2005 – including a spend of £605,000 on stationary alone last year.

“The Government’s pledge to provide a ten million pound transition fund to help firms adapt to the new environment is a step in the right direction but given the scale of the change much more support will be needed,” said Holroyd.

The Legal Aid Practitioners Group welcomed the LECG research. Chairman Richard Miller said: ”The legal aid supplier base is very fragile, and needs support if clients are not to lose the services they need. It is in danger of being significantly damaged by the Carter reforms: even treatment aimed at saving the patient may kill if the patient is not strong enough.””

I am keeping my fingers crossed that I do not work for one of those 800 firms mentioned in the report! The reality is that the firm I work for is unlikely in the short term to stop doing legally aided criminal defence work, but in the long term who knows what is going to happen? Oh, I forgot, Lord Carter knows what will happen, perhaps I should ask him if I will still have a job in 10 years time?

Phew

I recently represented a Client for a matter of driving without due care and attention. As the Client's case did not qualify for legal aid they funded their case on a private basis.

The case took about six months to deal with from start to finish. The trial took place recently and I am pleased to report that I secured another acquittal. Before my critics start jumping up and down suggesting that private money has been the root cause for the acquittal let me explain that this is a case that should not have been prosecuted from the start.

My Client was alleged to have been the cause of a road traffic accident. There were two prosecution witnesses who claimed to have seen the accident. The first witness said that a lorry had crossed through a junction and that because of this lorry the 'other' driver was responsible for the crash. The second witness said that no lorry had been at the junction and she had not seen my Client cause the accident anyway.

At the half way point in the trial when the Prosecution had completed their evidence I made a submission of 'no case to answer'. The Magistrates decided that the Prosecution evidence taken at its highest was such that a Court could not properly convict. At hearing this news my Client began to cry at the sheer joy of being acquitted.

I escorted my Client out of Court as the trial for the 'other' driver continued. Most Clients are fairly unresponsive to being found guilty, being found not guilty, or even being sentenced to prison. Many of my repeat Clients do not consider being sent to prison as something that will overly concern them, and therefore they show very little emotion if sentenced to prison. This particular Client explained that they had been so worried over this case that they had lost sleep and appeared to have genuinely suffered emotionally in the time it took the case to come to trial.

I was rather pleased to see that the result I had secured actually meant something to this Client. What was even better was the fact that the Client had thanked me for the work that I had undertaken on her behalf. Clients rarely say thank you.

Can't You Just Make It Up?

I spent most of my day today at my local Magistrates Court. I dealt with a variety of cases including one matter where my Client had previously pleaded guilty to driving without insurance and his case had been adjourned until today for him to argue that despite being a potential totter he should not be disqualified from driving due to 'exceptional hardship'.

Unfortunately this Client had only contacted my office yesterday and everything today was rushed as a result of there being very little time to prepare the case. My Client went in to the dock and during a series of preliminary questions asked by the Magistrates I had to keep asking the Client for the answers because of the lack of time that I had had with the Client prior to his case being called on. During these questions I was approaching my Client in the dock and asking him in a quiet voice the questions in order to get a response to give to the Court. My Client would then reply in an equally quiet voice that the Magistrates could not hear, and then I would pass that answer on to the Magistrates. When I asked my Client one particular question he responded, "Can't you just make it up?" I was somewhat surprised at this response. Many people will suggest that I am morally corrupt doing criminal defence work, but, one thing that I will not do is make up stories for my Clients. I replied, "No, tell the Court the truth." My Client then came up with the answer after some considerable thought.

The case continued for some time and after my Client had given evidence under oath the Magistrates announced that they were satisfied with My Client's evidence and despite imposing 6 penalty points on his driving record when he already had 6 penalty points they did not disqualify him from driving as a result of being a 'totter'.

After the hearing my Client commented that the private fee that he had paid my firm to represent him had been the best money he had ever spent. He then went on to say that he had now understood that to succeed in Court you needed to know what not to say rather than what to say. This was a fairly good observation to be made by a lay person, but he was correct. Advocacy is the art of persuasion, and usually the most persuasive argument is one that ensures nasty facts are not made known to the Court.

Re-re-balancing The Criminal Justice System

The BBC has reported that the Home Secretary is going to issue another consultation paper where he seeks to re-balance the Criminal Justice System again:

Judges could be stopped from freeing criminals on legal technicalities under government plans. Home Secretary John Reid, who says he wants to "rebalance criminal justice in favour of victims", will launch a consultation on how to achieve his aim.

The consultation paper states that it "should not be possible to quash" a conviction that is considered "safe".

The move follows a police crackdown on reckless or drunk drivers escaping conviction through legal "loopholes".

Writing in the foreword to the paper, Mr Reid said new laws would be required.

"Whilst the government is open to suggestions about how we achieve the aims, we are not consulting on the aims themselves or on whether the law should be changed," he said.

"It is our firm view that the present system risks outcomes which are unacceptable to the law-abiding majority."

Common examples of so-called loopholes include the police failing to properly read suspects their rights, or searching homes with out-of-date warrants.

The Home Office consultation paper states: "The government acknowledges that the Court of Appeal are not in the same position as the jury and may not always be able to form a view on whether the appellant committed the offence.

"However, where they have formed such a view the government believes they should not be empowered to allow the appeal."

To read the BBC article follow this link.

Is it me or does Dr. John Reid simply not understand the rule of law? We have over centuries developed a legal system that is designed to allow both the Prosecution and Defence to give evidence in Court to decide which side is correct - it seems to me that Dr. John Reid does not like the idea of a not guilty verdict! The conviction rate in this country is something like 97% in the Magistrates Court. What more does he want?

If he looking to prevent people having convictions quashed by the Court of Appeal on technicalities then he wasting his time - the Court of Appeal has said in many judgments over the past few years that technicalities will not prevent an otherwise safe conviction from being quashed.

Okay, rant over...

Drunken Solicitors

I stumbled across this piece written in the London Criminal Courts Solicitors Association publication, The Advocate, this evening and I thought that I would share it with the general public:

This piece was prompted by a letter of concern which I wrote to the Association following the Grosvenor House dinner. I have been attending the dinners for many years; my first memories are of its being at the Savoy. The Association was then very small (about 250 or so members); the original aim of the dinner was to provide an opportunity for London solicitors to entertain the stipes. Even as late as the seventies, solicitors (particularly those in crime), were thought to be a little below stairs, and this was a chance to raise their profile.

Over the years, the occasion has grown in size and has changed in other ways. In recent years it has come to be known as the “touts” ball. I never quite understood who was supposed to be doing the touting, but assumed the reference was to the Bar. However, as it is the solicitors who shell out quite generously to entertain the Bar at their tables, the jibe appears misdirected. Perhaps the label is one which is in fact applied by the disappointed barristers who don’t secure an invitation.

Of course, the other big change in the last couple of years has been that stipes are now not formally entertained at Grosvenor House by the Association. Sensibly, that evening has been moved to a biannual event, in the more intimate surroundings of the Savoy. However, many judges are still invited to the dinner by members.

The dinner, like LCCSA itself, has been a runaway success over the last few years. It is a landmark in the legal calendar, a great opportunity for firms to entertain their staff, their friends and colleagues at the Bar, and some judges. It is moving towards looking more like a ball than a legal dinner. Some of us are concerned by this drift but the truth is that it is popular and well attended, and therefore seems to suit the membership.

One thing, however, is not working well and that is the conduct at the tables during the keynote speech. The letter I wrote to the Association expressed my grave concern about the treatment of speakers. I am a long-standing friend and honorary member of the Association and I feel strongly that there should never again be a situation such as occurred this year. The Association invited Sir David Calvert-Smith to give the keynote address. He graciously agreed, and as a regular attender, he would have known what a challenge it is.

Anyone agreeing to make the speech is signing up to a great deal of thought, sweat and preparation and is generously giving that time and effort to the Association and its guests. Sir David has experience of every aspect of the legal landscape. He had prepared an important and interesting “state of the nation” address which deserved our undivided and respectful attention.

As those present will know, Sir David was subjected to a barrage of drunken noise; despite efforts to quieten the tables, a good proportion of those who were present continued to talk loudly among themselves while the speaker struggled through. The whole episode was unprofessional and highly embarrassing, and, in my view, did the Association a great deal of damage.

The problem is simply drink. It is quite clear that, by the end of the dinner, many in the room are beyond the point of being able to control themselves and are certainly in no condition to listen to a thoughtful legal speech.

Although this year was the worst I have encountered, the problem is not new and I believe has been ignored for too long. I have therefore urged the Association not to ask any more senior judges or lawyers to speak after this dinner.

What are the alternatives? We know that the “Gilly Gray” type of speech – a series of wonderful jokes and stories – will work, but Gilly Grays are few and far between. A professional paid speaker would offer a similar service and would “hold” a boozy audience, but this option would move so far from the legal dinner model that it may be defeating the entire object of the exercise.

I am told that in Holland speeches are made at the beginning of a dinner before the drinking begins; this would be novel and could work. Otherwise, it may be best to abandon the keynote speech altogether, have a short morale boosting speech from the current President, and leave it at that.

The decision is one for the committee, assisted by sensible representations from the membership. I know that the committee would value responses from members to this piece to enable its members to find a way to ensure that the success of the dinner continues but to guard against any possibility of the good name of the Association being brought into disrepute as a result of boorish behaviour.

– Stephen Dawson, district judge (magistrates’ courts)

Some of the comments made in this piece are entirely true. Solicitors do look forward to attending at this event, and some do get terribly drunk. But, this years speech was bloody awful. I was present at the event mentioned in the article and my table held a sweepstake to guess the length of the DPP's speech. I thought that my estimate of 18 minutes was pretty good, but if memory serves me right the speech went on for some 27 minutes. The speech did not deserve the heckling that it received from one drunken man who decided to shout, "Disclosure!", at inappropriate moments. By the end of the speech my table had lost interest in what the DPP was saying simply because he was talking for too long, in fact my table may have been one of the tables talking too loudly!

Ouch

A murder took place in my local area recently. The man charged with the murder had been arrested on a weekend day for a matter of domestic violence. He was then interviewed, he made full admissions, and then it was decided that it was appropriate to caution him for the assault and release him. The man then went home and killed his wife.

The reality is that whoever the unfortunate soul was within the Police who authorised this man to be cautioned cannot be criticised. I would imagine that if the man had been legally represented the solicitor would have pushed for a caution, and the Police would have probably been satisfied to give a caution provided that there had been no previous incidents of domestic violence and the man appeared to show some remorse.

Meet Vera Baird QC

I went to a meeting today in Cambridge to meet the Legal Aid Minister Vera Baird QC. The meeting was attended by about 40 to 50 other solicitors in order to discuss the Carter Report. The meeting consisted of the Minister and Derek Hill of the Legal Services Commission taking for about 30 minutes about the implementation of Carter, and then they answered questions for the next 90 minutes.

I had been looking forward to this meeting as I had a number of questions to put to the Minister. I was somewhat, selfishly, disappointed when most of the time was taken up by answering questions on the civil implications of Carter. When the subject turned to crime a local solicitor started to exaggerate the circumstances of waiting around at the Police Station claiming that he had been called to the Police Station four times in the past ten days and made to wait for three hours. I have no doubt that he did have to wait but not for three hours, four times, in the past ten days. This exaggeration detracted from the seriousness of the crime reforms, and the true impact they are going to have.

When I was able to get myself heard in the room I asked the Legal Aid Minister if any exceptions would be made to fixed fees for waiting in the Magistrates Courts allowing solicitors to claim for time wasted that was not their fault. During my exchange I was told that solicitors would have to alert the Department for Constitutional Affairs about delays caused by third parties so that the DCA could resolve the problems in the future in order to make fixed fee payments work. I replied by quoting examples of waiting that was caused by the fault of others, and then pointed out that a report produced by Professors Cape and Moorehead a few years ago alerted the legal world to the fact that waiting was a part of solicitors work and that the waiting was generally the fault of other parties. Unfortunately my exchange with the Minister broke down, she talked over me, and when I tried to talk over her she replied in a Question Time like manner, "Will you let me finish please." The verbal traffic was very one way in that I was talked at. Eventually the Legal Aid Minister decided that I was not being courteous enough as I was taking up too much of the question and answer session time. She made us all raise our hands and we had to wait to be selected before we put further questions to her, unfortunately she decided not to pick me for any further questions so I grew tired of trying to ask questions and put my hand down.

From this meeting I have gleaned that the basic principles of the Carter reforms are going to be brought in by the government. This was no big surprise. I have been told that if I object to the proposals then I need to put those objections in writing. Again this was no surprise. I intend to reply to the government consultations on Carter but if my written responses are treated anything like my verbal questions today I cannot see much notice being taken of my point of view. I simply hope that if more people voice their concerns the government will listen to a large number of voices.

More Tales From The Jury Room

Here is another contribution that I have been sent about jury deliberations:

The charge was section 18 wounding, arising from a road-rage incident. The defendant, who, if things had stopped rather earlier than they did, would probably have been in court as the complainant, admitted hitting the other chap - in what he said was self-defence - while he was holding his car keys. The way the complainant came to be slashed across the throat (fortunately not very deeply) was that, according to the defendant, the small lock-knife he kept attached to his key-ring had somehow sprung open during the fight, without his realising it, because the catch was loose.

As quite often happens, the judge had sent the jury home after the speeches the previous day and summed up first thing in the morning. The jury were then sent out and we were rather surprised to be called back into court 10 minutes later.

A problem had come to the judge's notice. He'd just heard from the court security guards that one of the jurors had set off the metal-detector when he arrived that morning. They'd discovered this was because he'd got two knives with him. Obviously, they told he couldn't take them in with him and confiscated them, despite his protests that he needed them because he and another juror wanted to demonstrate their colleagues what they thought might have happened in the fight.

The jury were dismissed because, as the judge said, they'd clearly been developing very speculative theories about the fight. It's fortunate, I suppose, that we avoided a situation in which the jury had to explain they couldn't reach a unanimous verdict because one of their number had just been taken to A&E.

Bail Pending Appeal

I recently represented a Client who pleaded guilty to an offence, due to the Client's previous convictions and the nature of the offence he had committed he was always at risk of being given a prison sentence. I explained to the Court the Clients personal circumstances and suggested if the Court considered taking action that was more serious that a conditional discharge then they should ask the Probation Service to prepare a pre-sentence report. The Magistrates retired and then came back in to Court saying that they wanted to deal with the case now and that they were thinking of imposing a sentence that could include prison.

It is not often that a bench of lay Magistrates will give an indication that they want to send someone to prison without first obtaining a presentence report. Unfortunately my client had previously been sent to prison, albeit a number of years ago, and I was therefore forced to deal with the case on the spot. I gave the Court full details of my Clients mitigation and the bench again retired.

During the time that the bench were out the Clerk of the Court asked if I was going to apply for bail pending appeal. It was strange of the Clerk to give the indication that she did as it meant that my Client was going to be sent to prison. I spoke with my Client and he said that if he was going to be given a prison sentence then he wanted to appeal against the sentence and apply for bail. I then drafted a notice of appeal and waited for the bench to come back.

The Magistrates decided to send my Client to prison. Once they had finished their pronouncement on sentence I stood up and explained that my Client was appealing against their sentence and I was applying for bail on his behalf pending an appeal being resolved at the Crown Court. The Magistrates listened to my bail application which was very simple: you have given a man a prison sentence when you have given his personal circumstances insufficient consideration. I basically told the Magistrates that they should give my Client bail because they were wrong to send him to prison. The Clerk of the Court explained to the bench that they should only grant bail pending an appeal in exceptional circumstances, this advice was spot on and correct.

The Magistrates retired and returned, and for some crazy reason they gave my Client bail pending his appeal. This means that despite deciding in the hearing that my Client deserved to go the prison they reversed their logic when granting bail.

I think that the logic in the decision was actually that the custody staff had gone home for the day and had the Court really wanted to send my Client to prison they would have asked him to wait whilst they arranged for a van to pick him up.

Destroy the Evidence

I overheard a colleague talking about one of his cases today, he told his Client that the prosecution against him had been discontinued because the prosecution had destroyed the principal evidence in his case.

The Client was being prosecuted for possession of a prohibited weapon, which for the sake of simplicity was a gun. The gun had not been used in a crime, it was discovered during a house search. Unfortunately the Client did not have a licence for the gun.

The Client was investigated by the Police and then prosecuted by the Crown Prosecution Service. The case was moved from the Magistrates Court to the Crown Court because it was so serious. Once the case was in the Crown Court someone decided it was appropriate to destroy the gun. Whoever decided to destroy the gun obviously had ultimate faith in the strength of the prosecution case but absolutely no regard for the rule of law.

From the outset of the case the defendant had told the Police that he did not possess a gun, and that he in fact had an air pistol. The Crown Prosecution Service were put on notice that the defence intended to get their own expert to examine the gun. I am mystified as to why the gun was destroyed. Someone from the prosecution clearly thought it was a good idea, maybe they have had second thoughts now?

Without allowing the defence to examine the gun the prosecution had shot themselves in the foot. No Court in the land would convict a defendant on the basis of evidence that could not be tested, particularly where the prosecution had been told that the defence had wanted to test the evidence from the outset.

Waiting For Means Testing

When I started working in the world of criminal defence work as a trainee solicitor in order to get legal aid you had to pass two tests, the first was the means test, the second test was the merits test.

Completing legal aid applications was a nightmare. First of all you needed to get the Client to the office, then you had to ensure that their criminal case was sufficiently serious to meet the merits test. The merits test has reamined very similar over the years, generally speaking if there is a real possibility that you could receive a prison sentence, or there was something complex or novel about the case then you met the test. The next stage was to fill out the form to meet the means test. This was always the part that was a nightmare. If a Client was on means tested benefits they had to provide evidence that they received that benefit. People on income support generally had benefit books and these could be photocopied. Client on job seekers allowance had to get letters confirming that they were actually being paid job seekers allowance. Clients who were working generally did not qualify for legal aid, but to complete an application you had to submit three months worth of wage slips. If the Client was self employed then they had to show their accounts for the past 6 months.

Means tested legal aid is coming back and will start with effect from 2nd October 2006.

I am not looking forward to means testing. The Legal Services Commission have already stated that they are willing to put in place an early cover system whereby solicitors can claim up to one hours work for representing Clients who have applied for legal aid within 2 days of being charged with an offence but who have failed the means test. This early cover system is then supposed to allow solicitors to claim for up to one hours worth of work on the case if legal aid is refused. Most defendants are not particularly clever, or organised, and I cannot see how most defendants are going to be able to supply the documents to prove their financial situation within two days of being charged at the Police Station and told that they are to be prosecuted. It is more likely that it will take them the best part of a week. In the days of means testing I recall case after case being adjourned because legal aid had not been properly sorted out due to financial circumstances/evidence.

The real worry I have about means testing is that it is all going to go horribly wrong. When there used to be means testing there would be about four weeks between the time a person was charged at the Police Station and the time they appeared in Court - by todays standards that time period has been reduced to about 1 week. There is going to be a lack of time to sort out the legal aid applications, and cases ae going to go before the Courts with Defendants saying my solicitor is not here because I have not got the papers to apply for legal aid yet. The Courts will slowly get bored of the argument that they should not deal without a Defendant's case because he has not sorted out his legal aid and then chaos will start as Defendants who are not represented will start to enter pleas without advice. You will get Defendants pleading not guilty to matters where they are guilty on their own account but think that the law is different and that they are in fact guilty. The reverse could also happen where people plead guilty to matters where they in fact have a defence.

I can foresee that there will be chaos. The savings that the Department for Constitutional Affairs believe that they will make by making Defendants who can pay for their own legal costs doing so will be wiped out by Courts becoming clogged up with Defendants who could be represented on legal aid funding but have failed to properly apply for legal aid.

Means testing is the wrong way to deal with funding. The Crown Courts operate a system whereby legal aid is granted to cases that are sufficiently serious, or complex, and if at the end of the case the Defendant is found guilty or has pleaded guilty the Court will assess the defendant's finances and then make a Recovery of Defence Costs Order and make those who can afford to pay pay for their legal aid costs. The Magistrates Courts should adopt this idea to prevent Defendants, Magistrates, and Solicitors getting tied up dealing with legal aid applications when they could be getting on with progressing the case.

Jury Service

Here is an amusing story that I was sent by e-mail last week:

My main reason for writing was to share with you this account of the exploits of a trainee criminal solicitor who was doing jury service with us this week (he'd already explained to court staff he was a trainee solicitor with a particular interest in crime). He was on a fraud trial in which the first jury had had to be discharged because one of the prosecution witnesses blurted out something very prejudicial about the defendant while giving evidence. The judge started the day, in the absence of the jury, by reading a letter he'd just received from this chap; the juror feared that much of the evidence was going over the heads of some of the other jurors and, to remedy this, he'd downloaded and made copies of various sections of two Theft Acts plus some Court of Appeal rulings that he thought would help the jury. He thought, though, that he should ask his honour's permission before distributing them to his colleagues.

'Ah,' said the defence barrister; 'may I ask your honour if this is the gentleman who has been sitting at the extreme left of the back row? [It was]. It's just that, yesterday evening, the defendant's relatives, who've been in court throughout, told me that that particular juror had had with him a book on criminal law throughout the trial and that, during lunch yesterday, they'd seen him sitting outside the pub round the corner apparently discussing what they assume to be the same book, which was open on the table, with four other jurors'.

The judge was very nice about it when he dismissed the jury, explaining that he was sure everyone had been acting from the best intentions but, unfortunately, he had little choice but to stop the trial.

As one of the barristers commented afterwards, clearly they hadn't yet reached the module on criminal procedure in this guy's course!

Credit For A Not Guilty Plea

There is a principle in criminal law that if you plead guilty at an early stage you will receive credit for your guilty plea. In real terms that means you are likely to receive less of a sentence if you plead guilty than you would if found guilty at the end of a trial.

The title of this post is credit for a not guilty plea because in recent weeks I have had cases where my Clients have been found guilty at trial but have then received a somewhat lenient sentence, and a sentence that is far more lenient than they would have received should they have pleaded guilty at the first hearing.

Trials can sometimes be odd in that going through the prosecution evidence and defence evidence the nature of the case is made known to the Magistrates Court and not just the bare facts and mitigation that would be presented during a sentence hearing.

There are, in my opinion, two reasons why sentences can be more lenient upon conviction after a trial. The first reason is because the Court hears fuller facts and has some sympathy for the Defendant. The second reason is because they want the case to come to an end and decide to impose a minimal penalty so that the Court can finally wash it's hands of the case instead of dragging the case out with another hearing.

Tales of Woe

Here are a few tales or woe about the contractors that move defendants from either Police Stations or Prisons to Court and back. The government decided in their wisdom to get contractors to move defendants instead of the Police or the Prison Service. There have been many problems with this system, such as when Group 4 took over the contract in London previously held by Securicor they did not have as many vans to transport defendants so defendants would routinely arrive late!

Here are a few of the best examples I have heard of recently:

1. A defendant is moved from HMP Nottingham to Harwich Magistrates Court. For some reason the custody staff contracted to work at Harwich Magistrates Court were not there. The van from Nottingham was operated by a different contractor. The staff on the van from Nottingham refused to take the defendant off of the van and in to the cells at Harwich because they were only contracted to bring the defendant to the door of the local Court and not to man the custody suite at Harwich. The result of this run in was the van was driven some distance to another Court to drop off the prisoner and prevent the two day trial from taking place.

2. At one of my local Police Stations they have decided to knock down the old custody suite and build a brand new one for the Police Station. The Police Station is physically less than 10 meters away from the local Magistrates Court. Having built the new Police Station custody suite people are now scratching their heads as to why a tunnel was not built between the Police Station custody suite and the Magistrates Court. In the future a firm will have to be contracted to move the defendants 10m from the Police Station to the Court and it will no doubt involve the use of a van!

3. When a particular contract was agreed for one Magistrates Court the people responsible for the decisions decided that in order to save money they would get a contractor to man one Court dock of the Court building instead of all three. As a consequence if the Magistrates make a decision to send someone to prison their case must be either already in Court One or moved to Court One of the building before a custodial sentence can be passed.

I did call these tales of woe, but they are in fact very real accounts. They might sound funny but they really are the truth.

District Judge Cooper

I have finally met the infamous District Judge Cooper who is referred to by criminal solicitors as 'Custody Cooper'.

I had the joy of going to Colchester Magistrates Court and watched this infamous District Judge in action. District Judge Cooper has a reputation for remanding people in custody where he either thinks that they are a bail risk despite the fact they are already on bail, or, that they need to consider their not guilty plea by being put in the Court cells for a few hours.

For various reasons I was waiting for my case to be dealt with so I had the opportunity of watching District Judge Cooper deal with the majority of a remand list. Some of the highlights included:

1. The three handed bail application. Three defendants appear in custody for a matter that can only be dealt with at the Crown Court. The defence solicitors all suggest that they want to apply for bail. The prosecutor objects to all three being granted bail. The first defendant applies for bail, and is refused. The second defendant applies for bail and is refused. The third defendant then withdraws his bail application knowing that he is going to be refused bail.

2. The bad character application that was reinstated. One case had been listed for the Crown Prosecution Service to make a bad character application for an impending trial. The Prosecutor stated that his colleague had decided to withdraw the application. District Judge Cooper expressed dismay. He then went through the defendant's previous convictions, he told the prosecutor that propensity had clearly been made, and that it was in the interests of the Magistrates who were going to deal with the trial to know about the bad character. He effectively co-erced the prosecutor to relist the matter for a further bad character application to take place.

3. The sentencing monologue. A defendant had appeared in custody on a Saturday morning and had been adjourned to be sentenced in front of District Judge Cooper for a matter of dangerous driving. The first comments to be made by District Judge Cooper when he saw the list of previous convictions for the defendant was, "Why has he not been sent to prison before?" and, "Why has he been given community penalty after community penalty that he has breached?" Despite the best efforts of the solicitor representing this particular defendant District Judge Cooper embarked on a sentencing monologue that lasted for several minutes where he criticised previous Courts for not imposing proper custodial sentences on the defendant. He then refused to sentence the defendant in the Magistrates Court and sent his case to the Crown Court to be sentenced.

District Judge Cooper is very entertaining to watch and if you are ever free on a Thursday morning he is well worth watching at Colchester Magistrates Court. The general public would probably applaud the comments he makes about defendants and approve of his methods. District Judge Cooper is very polite to defendants. It is amusing to think that he appears somewhat hard with defendants when he used to be a defence solicitor himself.

Carter

I have not posted much recently as I have been pretty busy and have had my head buried in the Carter Review. Lord Carter of Coles has published his report on the procurement of legal aid and has suggested some pretty far reaching reforms of how us criminal solicitors should be paid.

I am not going to dwell on the contents of the report but I do want to raise a few points. No doubt as time goes on I will bang on about Carter, but I will save you from my monologue at this stage.

Lord Carter wishes to change the way that criminal solicitors are paid. For Police Station work it is proposed that instead of being paid varying hourly rates for travel, waiting, attendance etc., that we should now receive a fixed fee for each Police Station case. That means for most cases a set fee will be paid, and that the fixed fee will only be increased if over 18 hours of work is undertaken. It is very, very, very rare for a Police Station case to involve more than 18 hours worth of work.

Currently the varying hourly rates guarantee that whilst doing work on a Police Station case the work is being paid for. Hours worked equal fees generated.

This fixed fee system will not pay for any travel or waiting. The fixed fee will cover work done at the Police Station in terms of consulting with Clients, being present during interview, and being present during identification procedures. So any travel incurred getting to the Police Station or waiting there will not be remunerated in any way.

That's great! Should I be phoned in the middle of the night to attend at the Police Station for an interview at 3 am the government will not pay for me traveling to the Police Station, or waiting there if there is any delay (even if the delay were to be caused by the Police).

The fixed fee system will pay for cases on a per case basis, and not a per visit basis. Also the fixed fee will pay the same amount no matter what the offence is, so the government would pay the same amount if the case was a serial murder or a simple shop theft.

My real gripe with this system is that it will take away any incentive to attend at the Police Station out of normal contracted office hours. Most criminal solicitors are paid a percentage of the fees generated out of hours. So, if I dealt with a Police Station case outside of office hours and the legal aid fees generated came to £400 I would get paid £200 in overtime and then be taxed on that.

Fixed fees present a problem in paying overtime. If the fixed fees are brought in my firm would get paid about £175 before VAT is added. As I am employed I have no need to be VAT registered and cannot claim VAT on top of my overtime. The firm would probably pay 50% of the fixed fee so I would receive about £85 before tax in overtime. I am a fairly energetic solicitor and I am quite happy to work through the night if it is my turn on the rota. There are slightly older members of the profession who would not think twice about ignoring a call for what would be something like £55 after tax.

This country has a network of solicitors that will attend at any given Police Station within 45 minutes of being called 24 hours a day, 7 days a week, 365 days a year including Christmas Day. Bring in fixed fees and you will destroy the incentives to work out of hours, and potentially destroy this network of solicitors available to work out of hours. Why would a solicitor want to risk going to the Police Station in the middle of the night for £55 when it could involve 4 to 5 hours worth of work (including travel and waiting). It puts it in to perspective to think that working for 5 hours through the night the rate of pay after tax is £11 an hour!

Capital Punishment

I sat in my local Court cafeteria today discussing the recent comments made by a Crown Court judge that he hoped a serious sex offender would die whilst in prison. Our discussion then moved on to the benefits that capital punishment could bring to the world of criminal justice.

Our prisons are very over crowded at this moment in time and it is unlikely that this situation will change in the very near future. Any prisons that are currently in the planning stage to be built are not going to be functional for many years. There are provisions such as identifying dangerous offenders, indeterminate sentences, the three strikes rule, and others, that generally mean that serious offenders are getting locked up for longer these days. Prisons are not cheap to run, and neither is it cheap to keep prisoners in prison.

My conversation was not on a serious level but I considered the benefits of bringing back capital punishment. I am sure that in the Lord Chancellor's current review of the interpreation and implementation of the Human Rights Act that he could persuade middle England and the Government to bring back capital punishment. Just think of the financial benefits of using the death penalty on anyone convicted of murder? There would be no costs for housing them in a prison, no costs in supervising them if they were to ever get parole, and finally there would be no risk of them committing further offences if released.

What about capital punishment in general? Domestic violence could be dealt with by way of public flogging, an eye for an eye and all that. Theft cases could be punished with the severing of hands and limbs. Public order offences could be dealt with by being locked in stocks and allowing the public to have revenge by throwing rotten fruit at them.

Capital punishment would ease the burden of work that the Probation Service/National Offender Management Service undertake.

Now I do not actually believe that capital punishment should be brought back, but if news of this blog post got to the Home Office you may see a new consultation paper issued: "Summary justice and capital punishment - the solution to this nations criminal justice woes".

Failing To Appear

There are many defendants that I deal with who like to gamble on who sentences them when they appear in Court. There is a District Judge who used to work in South London who has now moved to Essex who earned a particular nickname because he was so likely to send people to prison.

One of my colleagues recently represented a Client who was somewhat nervous about being sentenced. He was due to be sentenced for a minor offence but because of his previous convictions any sentence was likely.

The Client arrived early at Court and had a conference with my colleague. My colleague then told the Client which District Judge he was going to appear in front of. The Client then said he was going to have a quick cigarette, and that was the last time he was seen. The Client obviously decided that he did not want to be sentenced by that particular District Judge fearing that the risk of being sent to prison was too much.

The foolish thing is that when the Client is arrested on a warrant for failing to appear he will receive a harsh sentence for his decision to leave Court, and the sentence he then receives for the matter he was originally to be sentenced for will probably be prison.

Nothing To Say

I went off to one of my local Magistrates Courts today to deal with a Client who had been refused bail by the Police. I got to Court and picked up his papers. He was accused of a relatively minor set of offences. Unfortunately my Clients list of previous convictions was rather long. The Prosecutor immediately told me that she was going to object to bail due to concerns about by Client committing further offences whilst on bail, failing to attend at Court and interfering with witnesses. The Prosecutor based her fears on my Client's previous convictions that showed he offended whilst on bail, that he failed to attend Court, and that he had committed offences against the same complainant who had made the allegation against him for this offence.

It is an unwritten rule in the world of criminal defence work that you are expected to make a bail application for a Client when they first appear in custody at the Magistrates Court. This unwritten rule is strictly kept to because Clients love to see their solicitors fighting for them in Court and trying to secure their freedom. It really does not matter what the offence is, or what the chances of bail are - if your Client appears in custody at the Magistrates Court you must apply for bail.

I saw my Client in the cells and took his instructions. I usually look for a few key points in a case to base a bail application on such as the Client has never been convicted of an offence, or perhaps they do not have convictions for breaching bail or Court orders. I struggled to find one good point about my Client's case, eventually I decided that I would point out that my Client was being prosecuted, amongst other things, for an assault and that the evidence for the assault did not come from the person assaulted but another person who was heavily intoxicated.

I left the cells, went up to Court and the case was called on. Whilst sitting listening to the Prosecutor I then had a moment of inspiration, with nothing good to say I decided that my best tactic was perhaps to distract the Prosecutor. I had noticed that one of the Magistrates looked uncannily like Dr. John Reid so at an appropriate point during the Prosecutors objections to bail I leant over and said to her, "Have a look at the winger on the left, it is the Home Secretary". The Prosecutor looked over and started to snigger. My effort at distraction worked for a few seconds and did interrupt the flow of her speech, but unfortunately my effort at distraction was about as good as my chance of getting my Client bail - pretty poor.

I stood up and delivered my well argued bail application which was duly refused. Never mind I thought, at least the Client got his wish to make a bail application. I saw my Client in the cells after the Court hearing, he was happy that an effort had been made on his behalf, and in all reality he knew that he had no chance of bail.

Criminal Justice Reforms

The Home Secretary has decided to review and reform the UK criminal justice system. One of the key reforms is "ending automatic time off for guilty pleas." I could ramble on for a long time talking about all of the proposed reforms but I will save that for a later day.

It seems that the government is not happy with people being given less of a sentence for pleading guilty at an early stage in the proceedings of a criminal case. It strikes me as being odd that the government is unhappy with this proposition as it was this very government who established the Sentencing Guidelines Council. It was the Sentencing guidelines Council who published a document called Reduction in Sentence for a Guilty Plea and who effectively created a binding guideline for all criminal Courts in the UK to follow. Where a defendant enters a timely guilty plea they are to be given credit for their guilty plea in terms of discounting the sentence that they would have otherwise recieved had they not pleaded guilty.

I cannot go one day without having to confirm to a Court, or make a note in my own files, that I have advised a Client that if they plead guilty they will be given credit for their early guilty plea.

Why do the Courts give credit for early guilty pleas? Well, it is to reward a Client for being honest with the Court and to reduce their sentence to take account fo the fact that a timely and costly trial has not taken place.

If Dr. Reid does want to take away the idea of discount for a guilty plea then he is likely to find lawyers advising Clients that they have nothing to lose by pleading not guilty. If the sentence will be the same whether the person is convicted after a trial or pleads guilty then what is the point in pleading guilty? If there is no carrot being dangled to intice a guilty plea defendants are likely to plead not guilty.

This is for Fred

I have decided that it is necessary to explain what my job as a defence solicitor involves. From time to time I get comments posted on this blog that make it necessary for me to explain what my role in the criminal justice system involves. A poster called Fred recently commented:

"Hopefully if you get the scum bail he will knife one of your family."

I replied to Fred suggesting that his comment was a little uncalled for and he was kind enough to write:

"Gavin, not really, I never carry a knife and have never committed any crime. I have had friends and family who have been victims of your 'clients' and I stand by what I said. Get them off on a technicality and I hope they come after you and yours. We are all very fed up with the CJ system so you had better get used to the criticism."

I am a criminal defence solicitor. I am employed by a firm of solicitors and the only legal work that I do for that firm is criminal defence work. I do not prosecute cases. My work will mean that I am generally involved in cases in three ways:

1. Police Station work. I will go to Police Stations to advise and assist people who have been arrested and are to be interviewed under the terms of the Police and Criminal Evidence Act 1984. This will generally mean arriving at the Police Station, speaking to the Officer dealing with the case and getting disclosure from that Officer, having a consultation with my Client, and then being present when the Client is interviewed.

2. Magistrates/Youth Court work. As a solicitor I have rights of audience in the Magistrates and Youth Courts to deal with all hearings related to crime. I will represent people who appear for guilty pleas, or trials. I will also prepare these cases by taking instructions from the Clients and consider the evidence served in their case.

3. Crown Court work. I have limited rights of audience in the Crown Court so I will generally only do the advocacy for Crown Court bail applications. The remainder of work that I do for Crown Court work is taking Clients instructions, preparing their case for trial/sentence, briefing and liaising with their barrister, and from time to time attending at the Crown Court with the Client and their barrister for hearings.

As a criminal defence solicitor I will:

i. Act in the best interests of my Client;
ii. Represent my Client to the best of my ability; or
iii. Try to secure the best possible result for my Client.

As a criminal defence solicitor I will not:

i. Make up instructions for my Clients to give to either the Police or a Court;
ii. Allow Clients to tell the Police or Court something different to what they have told me already;
iii. Lie to the Police or allow a Court to be misled; or
iv. Tell the Police or Court if my Client admits to a crime.

I am bound by professional ethics. I cannot, and will not, lie on behalf of a Client. If a Client tells me that he has actually committed a crime and then wants to tell the Police or a Court a different story then I cannot represent him if he is going to give that second account. If A client tells me that he has committed a crime then I can continue to represent him provided that all I do is put the prosecution to proof and not put the Clients account forward.

The Police investigate crimes and gather evidence. The Crown Prosecution Service, generally, prosecute matters in criminal courts. As a criminal defence solicitor I defend. If a Client admits they have committed a crime to me I do not go and tell the Police or the Court that the Client has committed a crime.

You may find that the kind of work that I am involved in is objectionable. You may disagree that people who have committed a crime should be allowed access to a defence solicitor. You may disagree that where evidence is overwhelming that a defendant should be able to challenge that evidence in our Courts with the benefit of a defence solicitor. In the United Kingdom, as in many other countries around this world, we have freedom of speech and everyone is entitled to their own opinion - even Fred. But, should you ever be arrested where you have not committed a crime would you not want the best possible defence? Would you not want access to legal advice and assistance? Would you not want a solicitor that is prepared to fight on your behalf against the Police and Crown Prosecution Service?

Most people who are arrested are not innocent. Conviction rates in the Magistrates Courts and Crown Courts are something like 92% to 95% of people who appear before the Court are convicted of a crime. Some defendants walk away from Court on technicalities because someone has failed to do their job properly, be it because a witness cannot perform well when giving evidence, or perhaps a Police Officer did not investigate a piece of evidence, or even maybe a Crown Prosecutor failed to consider certain evidence. I do come across some Clients who appear to be genuine and say that they are innocent. It is very rare for me to ever believe a person who tells me that they are innocent, but, every few months there is one case where I actually believe that I am representing an innocent party. If you were that innocent party would you not want a solicitor to fight on your behalf?

I regularly come in to contact with criminals who I try to divert away from crime. There are youths who have had pretty poor starts in life who I try to show if they continue doing what they are currently doing then they will end up in prison wasting their life away. There are also drug users who I try to educate to ensure that they stay alive and do not kill themselves at an early age.

I am a defence solicitor, nothing more, nothing less. This is what I do.

Light Relief

In my local Magistrates Courts I do a fair number of trials. I get to see all of the faces that make up the local 'bench' of lay Magistrates. There are a number of Magistrates who I do have concerns about. There is one Magistrate who I am damn sure falls asleep in the middle of trials. I have seen their eyelids grow heavy, I have seen the Magistrate shut their eyes, and I have seen their head nod downwards as if they have briefly fallen asleep. I have been assured by a number of Clerks that this particular Magistrate is simply listening and the apparent sleeping is in fact their way of concentrating. Bizarre?

I stumbled across the following article on The Register web site. If I thought I had problems with a Magistrate that falls asleep then the people who have been before this judge clearly had greater problems:

A retired US judge is himself before the beak in Bristow, Oklahoma, "on charges he used a penis pump on himself in the courtroom while sitting in judgment of others", AP reports.

The trial of Donald D Thompson, 59, has reportedly provoked much courtroom merriment as the jury has been entertained by both a defence attorney and prosecutor indulging in "pantomime masturbation" and a former juror in Thompson's court identifying the sound of the pump because "he had seen such devices in Austin Powers and Dead Man on Campus".

A key witness in the trial has been former court reporter Lisa Foster. In giving testimony, she "wiped away tears as she described tracing an unfamiliar 'sh-sh' in the courtroom to her boss". Foster alleges that between 2001 and 2003 she saw the judge expose himself "at least 15 times", adding: "I was really shocked and I was kind of scared because it was so bizarre."

Foster further testified that during a 2002 trial, she heard the pump "during the emotional testimony of a murdered toddler's grandfather". She continued: "The grandfather was getting real teary-eyed, and the judge was up there pumping on that pump. It was sickening."

Thompson's pneumatic proceedings came to an end after a police officer heard the pump's distinctive signature during a case, and photographed the device during a recess. Thompson was charged with four counts of indecent exposure - each carrying a 10-year maximum sentence - and faces the possible withdrawal of his substantial $7,489.91 a month pension if found guilty.

From the witness box, Thompson claimed the pump was "a gag gift from a longtime friend with whom he had joked about erectile dysfunction". He admitted keeping it under the bench or in his office, but denied he'd ever used it. He added: "In 20-20 hindsight, I should have thrown it away."

Moments of light relief in the trial have included the aforementioned Austin Powers connection, offered by Daniel Greenwood, and expert witness Dr S Edward Dakil who "repeatedly prompted laughter" with his urology testimony.

When challenged by defense attorney Clark Brewster that the penis pump was "an out-of-date treatment for erectile dysfunction", Dakil asserted: "I still use those." After a suitable pause, Brewster enquired: "Not you, personally?" to which Dakil responded to jury laughter: "No. I recommend those as a urologist."

More On Blair

Here is an interesting summary of criminal justice since Labour came in to power. This information is from a Guardian newspaper report:

There have been more than 50 bills to reform the criminal justice system, introducing more than 700 criminal offences since Labour came to power. Tony Blair insisted yesterday they have made a difference - but what has their impact been?

Crime: The British Crime Survey shows that crime has fallen by 44% since 1995, and that the chance of becoming a victim is 24%, the lowest level since the BCS began in 1981. But 36% of people in opinion polls say that disorder in public places is a "very big problem" in their area.

Anti-social behaviour: When asbos were introduced in the 1998 Crime and Disorder Act, the then home secretary, Jack Straw, said they would provide "tough, effective sanctions against neighbourhood disorder". A Commons select committee inquiry concluded that there was little hard evidence about the extent of antisocial behaviour.

Summary justice: Mr Blair had to drop his threat to march drunken young offenders to cashpoints to pay on-the-spot fines. But the 2001 Criminal Justice and Police Act introduced a range of fixed penalty fines to tackle yob culture. Latest figures show that 43% of such fines go unpaid.

Fast-track punishment for persistent young offenders: Mr Blair promised to halve the time it takes to get a young offender dealt with by the youth courts. The average time taken was cut from 143 days to 72 days in 2001 for England and Wales, but there has been no further progress.

More police: Police numbers fell between 1993 and 1997, and when Mr Blair entered Downing Street there were 127,000 police officers. The numbers continued to fall to 124,000 until 2001. This decline was reversed and the number of officers in England and Wales has now reached a record 143,000 plus 6,300 community support officers.

Seizing criminals' assets: The Assets Recovery Agency was launched under the Proceeds of Crime Act in 2003 but has recovered only £8m despite costing £60m to run.

Tackling offending: A £96m probation scheme to tackle persistent and serious young offenders was launched in 2001. But recent Home Office research revealed that 91% of 10,000 on the programme were reconvicted within two years.

Prisons: The prison population has risen from 61,000 in 1997 to a record 77,000.

Blairs Balancing Act

Our Prime Minister has now spoken about rebalancing the criminal justice system.

A comment was made on a different web site that I thought was rather good:

Interesting speech but much of it does seem to be political spin:

"Here is the point. Each time someone is the victim of anti-social behaviour, of drug related crime; each time an illegal immigrant enters the country or a perpetrator of organised fraud or crime walks free, someone else's liberties are contravened, often directly, sometimes as part of wider society. It's no use saying that in theory there should be no conflict between the traditional protections for the suspect and the rights of the law-abiding majority because, as a result of the changing nature of crime and society, there is, in practice, such a conflict; and every day we don't resolve it, by rebalancing the system, the consequence is not abstract, it is out there, very real on our streets."

If Mr. Blair is seeking to rebalance the system he is in fact talking about tipping the scales in favour of the victim, does that not mean that the saftey of some questions will be called in to question? Bad character has been brought in, I have seen a spate of applications made in the early days, and now less and less applications for bad character are made. I sometimes sit down with Clients at the first hearing and advise them that if bad character is thrown in to their trial they might as well plead guilty. Hearsay applications, I have had about two of these in the past year.

Custody plus, now there is an idea that is supposed to balance the system. Send people to prison but ensure that they keep their jobs. Custody plus cannot work at this time because NOMS cannot provide the support that is required.

Bail has been tightened up with regards to drug users, but there are still areas where there are no drug workers and the Court is unable to take advantage of these laws because the system has not been put in to effect.

The real danager is that if the system is rebalanced then cases where the evidence by today's standard is not good enough for a conviction will result in convictions by tomorrow's lesser standards.

If Blair put the right funding in to NOMS and increased their staffing levels by massive amounts he would then be able to monitor offenders and tackle reoffending rates.

What I want to know is what does Mr. Blair actually intend to do to rebalance the system? His speech was not particularly clear to identify what is going to do other than think about things.

Darn, We Nearly Got Bail

I went off to a local Crown Court today to use my skills as an advocate to try to secure bail for one of my firm's Clients. I do not yet have higher rights to do any type of hearing in the Crown Court but as a solicitor I am entitled to do bail applications.

The Client I was dealing with was not at the Crown Court because nearly 99% of Crown Court bail applications take place without the Client being present. As the Client was not present I had to try to draw some inspiration for the bail application from elsewhere. I sat down with the file and read through the facts, a knife point robbery on the street. I noticed that my Client had a number of convictions for violence and had failed to attend Court in the past. Hmmm... no chance of bail then!

I then thought back to when I represented the Client at the Police Station. The Officer dealing with the case had told me as far as he was aware my Client and the victim of the robbery were known drug dealers who had worked in the past as partners. The Police are more relaxed about known criminals committing offences against other known criminals, there is a certain amount of justice in that they keep their offending amongst themselves.

The witness statements in the evidence stated that the victim did not know who the robber was, then two days later there was another statement saying that the victim had now remembered who the robber was and that it was my Client. This was my inspiration, this small crack was going to be my point in the bail application.

Point number two: the Client claimed to have an alibi at the Police Station and I was pleased to say that a statement had been taken from the alibi witness who had confirmed the Client's account.

I met up with the barrister prosecuting the bail application and had a very pleasant chat. I conceded that I was bound to loose the application.

When the case was called on I went through the motions, I made my points and to my surprise the Recorder was happy to grant bail. As the Recorder was referring to the name of the person my Client was going to reside with the Court Clerk stood up, turned to the Recorder and muttered that he recognised the name. The case was put back. A short while later the Prosecution trotted in to Court with a list of convictions for the person that my Client was going to live with who had more convictions than my Client. I was invited to withdraw my bail application by the Recorder and to try again with a new address. I had managed to use my advocacy skills to secure bail in a no hope case to be scuppered by a Clerk who did have an amazingly good memory.

After making a few phone calls today I am pretty sure that another address will be located and I will go back to apply for bail again some time next week. Heres hoping I can convince another Judge with my no hope case!

CCTV Never Lies

I went off to the Crown Court today to oversee the smooth running of a trial that was due to start today. I say that I went to oversee the trial because I was not doing the trial, a barrister was, and personally I find clerking cases very boring as I would rather be on my feet doing the advocacy.

This case involved an allegation of robbery where is was alleged that my Client had gone to a convenience store and attempted to obtain goods by waving a knife around. This case had always puzzled me because it was clear CCTV existed from the start of the case, and as part of this incident my Client received a blow to their head requiring seven staples in their head to hold their skin together. This head injury was not mentioned in any of the prosecution statements other than by the Police when they booked the Client in to the custody suite after her arrest. I had taken instructions from my Client and prepared the case on the basis that it was going to be an effective trial today. My Client even confirmed as little as two weeks ago that she had not committed a crime when she came to my office.

When I got to Court I was finally able to watch the CCTV. Unfortunately the CCTV showed my Client committing a robbery with a knife, and as they left the shop one of the shop staff could be seen running after her and hitting her over the head with a golf club.

My work had been in vain and today my Client entered a guilty plea. My Client would have pleaded guilty earlier in the proceedings if the Crown Prosecution Service had served me with a copy of the CCTV earlier.

Clients have a funny habit of not telling the truth. Prosecution witnesses have a funny habit of sometimes missing out vital bits of evidence from their statements. CCTV never lies.

Politicians v Judges

As I read through my newsreader (not a newspaper but a newsreader) this morning I came across an article published in the Observer with the headline: Back off, chief judge tells politicians. This is possibly the first article that I have read in the media this week that has not tried to sensationalise the current Politicians v Judges row. This article gives a good insight in to the fact that the whole farcical legal system that we have been left with at present is as a direct result of New Labour's meddling with the legal system.

The media is currently having a field day with the case of Craig Sweeny the person convicted of various offences under the Sexual Offences Act 2003, and who the media has deemed to have received a low sentence. Craig Sweeny was in fact the case that started the row between the Home Secretary and the Attorney General, and in turn has been the catalyst for the Politicians v Judges row.

The media has suggested that the Government is now considering a review of sentencing laws. The current New Labour sentencing laws are already unworkable and as such they have been put on the statute book, but their implementation has been delayed because currently the 'system' could not cope with the logistics that the new 'custody plus' sentencing scheme demands. It was anticipated that the provisions in the Criminal Justice Act 2003 that relate to the new sentence of custody plus would be implemented in November 2006 but now a written answer by Gerry Sutcliffe MP has suggested that custody plus cannot be implemented at this time:

Mr. Malins: To ask the Secretary of State for the Home Department when he expects the custody plus provisions of the Criminal Justice Act 2003 to be introduced.

Mr. Sutcliffe: While continuing to work towards an implementation date of Autumn 2006 for Custody Plus, the Government would not implement such an important sentence unless it was satisfied that the National Offender Management Service could cope with the additional work. The issue of capacity to implement this fully and effectively is being considered.

There is currently a crisis within the National Offender Management Service (aka The Probation Service) because the National Offender Management Service is currently well understaffed. Gerry Sutcliffe MP has failed to mention that the prison system is nearly full:

The chief inspector of prisons has warned that BritainÂ’s overcrowded jails are close to putting up '“house full'” notices and having to turn away newly convicted criminals.

Anne Owers said that with fewer than 1,800 places left from a total of 79,500, prisons could soon '“hit the buffers' and be unable to take any more offenders.

With thousands held in overcrowded conditions, including three to a cell, a further 1,800 would put the system in breach of health and safety laws. If present trends continue it would reach breaking point by mid-September.

I am looking forward to seeing the government sort out this mess. The Judiciary have already stated that prison overcrowding is a point that can be considered when sentencing an offender. The government is not going to be able to build new prisons in the immediate future the deal with the crisis. The thing that really confuses me about this sentencing/Craig Sweeny issue is that New Labour decided that prisoners should be eligible for parole at the half way point of their sentence under the Criminal Justice Act 2003, and not the two thirds point of their sentence.

Craig Gee Solicitors Advertising

You will notice dotted around this web site are Google Ads. I do not choose the adverts that appear, although I do have the ability to refuse to display adverts. Particular adverts appear and from time to time and I often have a look at the web sites behind the adverts.

Recently I noticed an advert and then had a look at the web site. Craig Gee Solicitors web site is pretty basic, and in fact the link to the criminal section leads to a page that is devoid of content. If you go to Google and do a search for 'criminal solicitor' you will see on the right hand side an advert worded like this: 'Criminal solicitor - Need help on criminal law issues in Manchester? Try this firm. www.craiggee.com' This advert is being paid for by Craig Gee Solicitors yet it ultimately directs users looking for a criminal solicitor to a blank page - that is just crazy.

Craig Gee Solicitors could I suggest that you either finish your web site, stop paying for advertising until the web site is completed, or perhaps find a new web designer so that you can actually get a return on the money you are spending on advertising! I cannot understand why money is being wasted on advertising that leads to nowhere.

Double Listing

I have spent a few days down at my local Magistrates Court this week. Today I had a special reasons hearing for a drink drive case where my Client claimed that he was drink driving because his drink was spiked. The case was always going to be quick and simple to deal with.

I got to Court nice and early and by 9.50 am I was ready for trial. My case was listed in a Court room with another trial. That trial took priority due to child witnesses so I had to wait around for another Court room to become free. In the other Court scheduled to deal with trials today they were also double listed.

Her Majesty's Court Service have a wonderful habit of double listing trials hoping that one of the trials will not be effective so that the other trial can then take place. Unfortunately today all the trials scheduled were ready.

My case was adjourned off until the afternoon shortly before lunch. I had to wait for about three hours this morning to be told to come back at 2.00 pm. It would have made more sense to put my one hour trial on before the others knowing that my trial would be short and sweet. When I did at last get my chance my special reasons hearing took place, the Magistrates found that special reasons did exist but then decided to disqualify my Client anyway!

Have A Go Hero

Last week I dealt with a two day trial in a Magistrates Court that nearly turned in to a miscarriage of justice.

The case involved five defendants, I represented one of the defendants. Essentially an incident had occurred in a street late at night where two youths (one was armed with a large knife) had approached a group of three people and attacked them. My Client was one of the group of three. All five defendants had been charged with the offence of using threatening words and behaviour and a number of the defendants had been charged with possession of a bladed article.

The facts of this case were very simple. The two youths had attacked the group of the three. There was then a general fight where the two youths got a bit of a kicking and then the Police arrived.

On day one of the trial the Crown Prosecution Service were asked if they would bind over the five defendants and after negotiations broke down all the defendants had to decide did they want to run the risk of being convicted, or plead guilty to obtain credit for a guilty plea. There was some very good CCTV evidence that clearly showed each defendant engaged in the offences that they were charged with, the question was could the defence rely on a defence such as self defence to have their defendant acquitted? Eventually the other two out of the group of three pleaded guilty. My Client decided he had the stomach to fight and wanted to go to trial. The two youths also decided to go to trial.

The prosecution case had been very badly prepared and had as many holes in the evidence as a lump slice of Swiss cheese. The barrister representing the two youths kept chuckling to himself that his youths were probably the most guilty out of the lot, and that they were going to walk out of the trial at half time because the identification evidence against them was so weak. The two youths had given no comment interviews at the Police Station and had admitted to nothing. Unfortunately my Client had not been represented at the Police Station and he had given an account to the Police full of horrible comments that sounded like he had gone over the top in attacking the youth with a knife, and therefore gone beyond self defence.

The half way point in the trial came and the barrister was right, his Clients walked out of the trial as the Prosecution case against his Clients was so weak they could not establish their identity on the CCTV because the Prosecution lacked a commentary on the CCTV or identification evidence to establish which youth was which. I could not exploit this point as my Client had made comments admitting his involvement in this incident!

At the end of day one my Client was the last person left in the trial. We moved on to day two. My Client gave evidence and stuck to his self defence and defence of others speech. I managed to convince one of the group of three who had previously pleaded guilty to give evidence one behalf of my Client on day two to corroborate his account.

The Magistrates went out to consider the case, and came back and acquitted my Client.

Looking back on the case I have no doubt that my Client was justified in what he did. He was approached by two youths, one holding a knife who were intent on causing trouble. My Client gave the youth with a knife a good kicking, and the Court found that he acted in self defence - even though the youth was left on the floor unconscious. This have a go hero was not convicted - although he probably should have been.

Lock 'Em Up

A rather interesting article has appeared in the Times today. This article suggests that the government policy of locking people up for short periods of time and then supervising them in the community for long periods of time is not going to work. The reason given for this policy not working is the simple fact that our prisons are currently stuffed full of prisoners and the system is struggling to cope.

Custody plus is a new type of sentence that is expected to come in to effect in November of this year:

Under "custody plus", offenders must be given between two and thirteen weeks in jail followed by at least six months probation on their release. Officials now fear that the introduction of the new sentence could lead to a further jump in the prison population because magistrates and judges will prefer to give an offender a short taste of prison rather than giving them a non custodial sentence.

The article concludes:

At the moment the Prison Service is 1,860 spaces short of being full, but last month Phil Wheatley, the director-general of the service, gave a clear warning of his concern about the future when he asked whether the planned 80,000 capacity for the system would be enough to deal with the numbers being dealt with by the courts. He admitted that the Prison Service was "very tight for room". Mr Wheatley added in an interview with Police Review: "“As long as I am not being asked to lock up more people than I can safely lock up, then I am OK. The question for the future is whether this is going to be sufficient?" Harry Fletcher, the assistant general secretary of the National Association of Probation Officers, said yesterday: "There are real fears that magistrates will use it [custody plus] as an alternative to giving people a non-custodial penalty."

Now if you add in to the mix that there have also been other changes to the criminal justice sentencing system in recent years the problem is going to get worse. As a result of the Criminal Justice Act 2003 suspended prison sentences are now easier to get. The requirements for a suspended prison sentence have been relaxed. A suspended prison sentence is basically a prison sentence that hangs over a persons head for a defined period of time. Should that person offend again during the suspension period they can be sent to prison. For example if Mr. Burglar received a suspended prison sentence of 6 months suspended for 12 months he would have to keep out of trouble for 12 months to ensure that his prison sentence of 6 months was not activated.

Suspended prison sentences are now usually imposed in addition to a community order that requires the offender to complete community service (what they now call unpaid work in the community) and or be subject to supervision (what they used to call probation). The problem with adding in community service or probation to a suspended prison sentence is that once you are in breach of either the community service or probation your prison sentence can be activated as you have not complied with the Court's sentence.

I had three or four suspended prison sentences handed out last week, they are becoming quite common for certain offences. There is therefore a growing number of people who are subject to suspended prison sentences, and a large percentage of these people will undoubtedly fail and be brought back before the Courts. As these numbers grow there will again be a problem that the Prison Service cannot cope with the number of people that are being sent to prison.

It was only a few weeks ago that the Lord Chief Justice gave a well thought out speech stating that short, sharp shocks do not work.

Tiring Work

I have completed a stint of Court Duty Solicitor work this week. I was the Court Duty Solicitor for my local Magistrates Court from Monday through to Saturday. Court Duty work is always interesting as you are thrown a variety of interesting cases to deal with. Some of this weeks highlights were:

1. The man from the Czech republic who was in Court for various motoring offences, one of which was imprisonable. He had been convicted in his absence of a number of things. He told me that he did hold valid insurance etc. I told him to go home and get his insurance document over the lunch period, and told him that he must come back to Court. He disappeared and never returned. As a warrant has now been issued for his arrest he will come before the Court for another Court Duty Solicitor to represent him.

2. The man who had not paid his fines since 2001 and claimed that he suffered from Alzheimer's. His medical condition afforded him a great defence to non payment of his fines. The Court could only send him to prison for non-payment of fines if they generally thought he had decided not to pay them, or had been negligent in the way he had not paid them. As this Client was giving evidence on oath that he had forgotten to pay them the Crown Prosecutor leant over to me and said rather cynically, "People will go to such lengths to avoid paying their fines. I bet he read about this condition in Take A Break magazine."

3. The man who had breached his community service and said that he could not complete his community service whilst the people who had stabbed him recently were also completing their community service. Unfortunately the Court did not accept this as a 'reasonable excuse' and his community service was revoked and he was resentenced to prison.

I was also on a 24 hour Police Station Duty Solicitor rota yesterday meaning that I have now completed another seven day working stint. No rest for the wicked eh?