Monday, August 21, 2006


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.

Monday, August 14, 2006

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.

Sunday, August 13, 2006

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.

Friday, August 11, 2006

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.

Tuesday, August 08, 2006

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.

Monday, August 07, 2006

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.

Saturday, August 05, 2006

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.


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!

Friday, August 04, 2006

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".