Sunday, July 23, 2006

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.

Friday, July 21, 2006

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.

Thursday, July 20, 2006

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.

Sunday, July 02, 2006

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.