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!