Tuesday, September 19, 2006

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.

20 comments:

The Conservative Bookman said...

I understand the need for criminal defence solicitors, Gavin.
But how do you justify taking a private fee from a man who doesn't pay his car insurance (indicating he can afford to do so, but chooses not to)?
Insurance is there for a reason, after all.
This sort of low-level, seemingly unimportant disregard for the rules of society is chipping away at society itself. And it seems to me that you're supporting that?

Anonymous said...

It is fairly rare to find a Client who pays privately when legal aid is (up to 2nd October 2006) widely available for cases that pass the interests of justice test.

Legal aid was not available for this case so if the Client wanted representation he had to pay for it.

The Client had pleaded guilty to driving without insurance so he was punished in terms of paying a fine and having points applied to his driving record. The Client avoided being disqualified by virtue of the exceptional hardship argument.

If I am provided with instructions I act upon them. I am not some kind of moral judge who has the right to decide who is telling the truth, or if I do not believe the instructions I decide not to act.

Maybe the instructions that I received were not genuine, but my role is not to judge those instructions, that is the role that the Court performs.

If you came to me saying that you had made an oversight and your direct debit had not paid your insurance would you like me to take a moral view before I decided whether or not to represent you?

I represent people on the basis if the instructions they give me. If I refused to represent someone who was in fact innocent then I would have failed in my role as a solicitor.

This particular Client did not give me two sets of instructions, he generally maintained the same account.

Gavin

The Conservative Bookman said...

The length and froideur of your reply is interesting and, I venture, revealing.

You ask whether I'd like you to take a moral view of my own non-payment if that non-payment was as a result of an oversight and my direct debit hadn't paid the insurance.

Was that the case for your client? Because around one million non-payers could probably use that excuse. If it was simply that he didn't want to pay then, yes, I think you should take a moral judgment and refuse to represent him. After all, society is collapsing because people aren't taking moral judgments any more.

Lawyers like to adopt this position, that (once at work) they are mere unbiased instruments of the law, rather than people with base instincts such as pride and greed, and yet we all know (all of us with experience of lawyers) that this is not the case.

A question for you: you say "If I am provided with instructions I act upon them. I am not some kind of moral judge".

Is that an absolute? If you managed to assist a killer in evading his just deserts - I mean, in bargaining him down from murder to manslaughter, and mitigating him from eight years to three - would you feel good about that? I imagine the fees would be good, especially once the rest of the criminal fraternity heard about how good you were.

Anonymous said...

You said, "Is that an absolute? If you managed to assist a killer in evading his just deserts - I mean, in bargaining him down from murder to manslaughter, and mitigating him from eight years to three - would you feel good about that? I imagine the fees would be good, especially once the rest of the criminal fraternity heard about how good you were."

Everything in the criminal justice system is relative. If a Client is happy to plead guilty to a lesser offence then it is a relative success.

Every now and then comments are posted on this blog on the moral points that you have raised. I do my job. If I refused to act for people who I did not believe than I would represent 1 in every 100 people.

Am I morally corrupt? Am I damaging society? Who knows? My job is to secure the best possible result for my Clients whether that be an acquittal or a sentence that is deemed acceptable to my Clients. I am a rare curiousity in that I post on this blog the real world of criminal defence work. If you speak to any other criminal solicitor or barrister they will tell you it is rare to morally question the culpability of a Client. There are other people in Court to represent the interests of society or the victim - it is not my job.

I think if you search for a thread on this blog called "This is for Fred" you will see how I have explained my position in greater detail.

Oh yes, on the subject of detail, you are getting lengthy responses because I have been travelling by train today and I am using a new mobile phone.

Gavin

freddie flintoff said...

"I do my job."

Er, can you explain how this is different from, 'I vas only followink orders'?

Anonymous said...

I hope he crashes into your car and you have to claim on your own insurance. Tom.

barry o'connell said...

It kinda gets old when you all start bashing the very idea of a defence solicitor. I am not one, neither am I a criminal but I can appreciate the role of the defence in ensuring that justice is not only done but that it is also seen to be done.

What would you all propose instead? Railroading the people YOU see as guilty without giving them any opportunity to account for themselves.

As for Freddie's dig - from what I can see Gavin is choosing out of principle, among other reasons, to do his job because he has the intelligence to understand how important it is in a just and democratic society.

Tom - how exactly is wishing harm on another even remotely civil? Get a life man.

Gavin - Keep up the good work and the great blog - always miss your posts when there are long time gaps.

Richard said...

The whole point that Conservative Bookman misses is that (if we are charged) we not merely are summoned to Court to be there tried, but that we have a right to be tried by the Queen's courts, and not privately by a solicitor or some other opinionated person.

Gavin said...

Freddie - read this This is for Fred.

Tom - grow up.

Richard - thank you.

Law Student said...

Not being a defence solicitor I have no authority on the matter. But to me it appears that your job is similar to that of say a member of the armed forces. You do a job that certainly isn't pretty but has to be done. There is a phrase that I have heard when people have been less than sympathetic about the deaths of servicemen over-seas, stating that it is their own fault and they shouldn't have joined;

'When all the soldier's are dead, who will fight your war for you?'

Obviously it's not exactly the same, but people like Gavin do a job that effectively keeps the justice system fair and working. I don't think you'd be very pleased if your defence solicitor didn't do all he could if you were accused of a crime.

Anonymous said...

I think your post makes this relevant again

http://mfile.akamai.com/12948/wmv/vod.ibsys.com/2006/0728/9591734.300k.asx

lets hope he s not back in your office again having killed somebody.

And you're next statement fills me with disgust. Your proffesion is all about muddying the waters and not the truth.....

"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"

Morally corrupt IS exactly what this is.

Gavin said...

Anon,

You said, "And you're next statement fills me with disgust. Your proffesion is all about muddying the waters and not the truth....."

You do not understand the role that I perform within the whole criminal justice system. My role is to defend and not to prosecute. I do not make up accounts for my Clients, and if they tell me that they are guilty I cannot then represent their case to the Court suggesting that they are innocent (other than put the prosecution to proof).

I do not morally assess whether the instructions that I have received are correct. Much the same as a Prosecutor does not look at the defence given and decide if they will drop the case.

I had a Client prosecuted yesterday for driving without due care and attention. A 50 year old woman who had no previous convictions, and no driving related convictions. The Prosecutor said to me at the start of the trial that she did not beleive my Client was guilty but was told by her superiors that the case must be prosecuted. Is that morally corrupt.

Back on to the subject of muddying the waters. My role is to defend and if the Prosecution have failed to mention a fact in Court then it is not my job to ensure the Court is aware of the fact that may assist in convicting my Client.

I defend, not prosecute.

kris said...

Gavin Said: "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".

WTF are you playing at?! Why oh why are YOU passing your client's testimony to the bench. It's HIS testimony- not yours for fucks sakes. Do they teach that advocacy techinque at College of Law -r is it at the College of Sharp Practice?

Anonymous said...

Kris,

Thank you for your eleoquent comments. Prior to the "full" exceptional hardship argument taking place the Magistrates were directed to determine whether or not they were minded to impose a discretionary disqualification or impose a mandatory minimum points penalty. The questions being asked were matters that I had had insufficient time to take instructions on as I had been instructed on that day.

Kris if you have ever seen proceedings in the Magistrates you will often see Magistrates asking advocates questions in
non-evidential sessions that are usually quite strange meaning advocates have to ask their Clients in the dock what the answer to the question is. Magistrates usually prefer advocates to answer the question than the Defendants.

College of Sharp Practice? No, I did my LPC elsewhere. I have got my experience from the College of Legal Life, spending my weeks working at the coalface in Magistrates Courts, Crown Courts, Police Stations, and prisons.

Gavin

kris said...

Well, without giving too much of your case away- I'd be intrigued to find out what "non-evidential" questions the magistrate needed answering from your client via you in the dock.

Gavin said...

Kris,

Have you ever seen an exceptional hardship argument in the Magistrates Court?

The questions being asked were things such as why had the insurance policy lapsed, when had it last been renewed etc., etc. These are non-evidential questions. As I said previously the responses from these questions determined whether or not the Magistrates would apply a discretionary disqualification or apply points as the penalty for the offence of no insurance that my Client had pleaded guilty to.

The legal argument where the Client needs to give evidence is when the Magistrates are deciding if exceptional hardship applies to his case so as to allow him to drive despite having 12 penalty points on his driving licence.

Elethiomel said...

Gavin,

I understand the importance, and difficulty, of a defence solicitor's role (though I'm on the other side of the fence myself) but what you write does raise a question in my mind:

After your client asked you to 'make it up' and then, upon your refusal, took time to think before providing you with an answer, did it not occur to you that he may have been (I contend probably was) lying? Do you not feel it is your duty to bring it to the attention of the bench if your client is deliberately misleading them?

Gavin said...

elethiomel,

The Client may well have just made up his answer. If I have to judge every instruction that I am given then I am performing the function of a Court in judging my Client - my role is to represent the Client on the basis of their instructions. The Court will make up it's own mind if it is going to accept the account given by the Client.

It is not my duty to tell the Court that I think my Client is talking rubbish, or is giving instructions that are hard to believe.

If I knew that a Client was lying about something, such as his address or his employment, and the Client wished to pursue that lie in Court I would withdraw from the case without telling the Court why I was withdrawing. I have a duty of confidentialty to the people that I represent. to prevent a conflict of duties I simply withdraw to keep the status quo.

Anonymous said...

I have been wrongly convicted of driving without due care and attention I am Innocent of this crime, to cut a long story short i was cut up when making a right turn by a speeding motorcyclist with no lights on at night, it was dark. 4 witnesses confirmed he came up behind me speeding and tried to overtake me while i was making the manouver with my right indicator activated, my lights were on and he had none on. he hit my right side of the front of car as swerving round me, he suffered minor cuts and bruises.
I suffered 2 years of nightmares, depression and anxiety, this accident has ruined my life as a result of the wrong decision of the magistrates that was not based on the evidence given in court but on presumtion. they said that because the damage was minor to my car ( which they didnt ask any evidence of damage at all ) the guy on the bike couldnt of been going that fast therefor it was my fault for not seeing him! despite him not having any lights on! It has devistated my life as my license has been revoked and i have to apply for a provisional licence and re take my driving test. It took me 10 years to save up to take lessons and my driving test and enough money to buy a car and a years insurance. My income is ridiculously low, less than 50 pounds a week to support me and my daughter,they were aware of my low income yet they gave me 6 points on my licence and a 430 pound fine, it will take me forever to pay that. these people dont realise there messing with peoples lives. without a car, which i can only just afford to run as it is, i will never get work as i need my car to travel to various jobs with my tools.

my solicitor said i am sorry i am not happy with the decision but theres not alot we can do about it, if you appeal the decision of the magistrates you run the risk of a higher fine and more points on your license and we know you cant afford to risk a higher fine. Ill tell you how it makes me feel... like theres no justice in the world and some prick can just come along and ruin your life in a flash with no consideration. its digusting! i have no faith in justice and no faith in the legal system any more I feel so depressed i have lost the will to live in this shit hole world. passing my test was the biggest acheivement in my life it took so long and my daughter was so proud of me - it was taken away from me for a crime i am not guilty of. what happened to innocent until proven guilty?
if this happened to your client what would your advice to them be?

Gavin said...

This is not the place to seek legal advice on your own case. It is impossible to provide advice with limited information and I would ask that you do not post further information about your case here to encourage people to comment on your case as any advice given, and relied upon, can be the subject of a negligence claim.

You were innocent and then proven guilty by a court. If you disagree with the verdict then you have the ability to apepal to the Crown Court - please do not take this as a suggestion that you appeal has any, or lacks, merit.

You need to seek legal advice from a solicitor having made an appointment with them to discuss your case, you should also show them the case papers you received.

If your licence has been revoked perhaps you should have argued at Court to be disqualified from driving instead of receiving penalty points?

Good luck.