Wednesday, November 28, 2007
The first news report was about a prisoner who decided to cut his penis off with a razor blade.
The second news report was about a defence that a Defendant ran at Court when prosecuted for various things including indecent exposure. His defence was that he had a very small and underdeveloped penis so therefore he would not go out in public flashing it about.
Sunday, November 25, 2007
A book that has been recommended to me is The Criminal Advocate's Survival Guide. This book has been recommended on the basis that it provides a light hearted look at the work I am involved in and provides helpful tips to improve an advocates skills.
I shall put both of these items on my Christmas list and see if anyone is kind enough to buy them for me.
Thursday, November 22, 2007
The case was always going to be a difficult one to deal with as the offence was nasty, and sentencing guidelines suggest that for such an assault prison, or in this case youth detention, should be considered as the sentencing starting point. On the last Court hearing the Court had ordered that a pre-sentence report be prepared to assist the Court in sentencing my Client. The report produced was very positive and made particular reference to the fact that my Client had an excellent record of attendance and compliance with the Youth Offending Service when he had been sentenced for other matters.
I informed my Client before the Court hearing that if he got lucky he would not be sent to prison, and if the Youth Court adopted the standard sentencing guidelines he could expect at least a four month detention and training order (i.e. the youth equivalent of prison). The hearing went well, my mitigation came out as I had planned with the usual speech of, "He should be given one last chance before you consider sending him to prison." I could see that the Bench were nodding their heads at the right parts of my speech. Once I had finished addressing the Bench they turned their attention to my Client and asked him what he had to say about matters - thankfully my Client had the sense to say that he was sorry. The Bench then asked my Client's father what he wanted to say, unfortunately he said something like this, "Send him to prison, it is the only way he is going to learn". That was exactly the kind of parental comment that an advocate dreads.
My Client was lucky enough to avoid being sent to prison, despite the seriousness of the offence, and despite his father's unhelpful comments.
Friday, November 09, 2007
If circumstances justify, a prosecutor may invite the court to consider exercising its power to bind a defendant over as an alternative to prosecution for a criminal offence. The prosecutor should only invite the court to exercise this power once he has made a firm and settled decision to offer no evidence in the criminal proceedings.
In some courts this proposal is treated as an invitation for the court to act of its own motion. In other courts it is treated as a complaint laid under S115 MCA.
If treated as a S115 MCA complaint (which can be written or usually oral) the court may wish to hear evidence or require some proof of complaint. It is therefore in such circumstances necessary to ensure that some admissible evidence sufficient to prove the complaint is available.
Prosecutors should never invite the court to bind over anybody other than the defendant.
Do you think that a bind over would be an appropriate way to deal with £50,000 worth of criminal damage? Probably not.
I had the joy of dealing with an odd case recently. A family left their home to go away on a holiday, they left behind their son who is a teenager. The son has a party one night, and the following night some people went to the same address and have their own party. At the party £50,000 worth of damage was caused to the property as the vast majority of the furniture in the property was smashed up and thrown around.
I represented a number of people accused of criminally damaging the property. The evidence in this case consisted of forensic evidence that established that a number of people were at the address, but unfortunately the Crown Prosecution Service had no evidence that any individual who could be placed at the scene had actually damaged anything - mere presence in this case was not enough to prove the crime.
The Crown Prosecution Service wasted thousands of pounds on this case. They attempted to have this case sent for trial in the Crown Court by initially charging the defendants with burglary and criminal damage. The Crown Prosecution Service accepted after a few weeks that the evidence in their case was weak as it relied upon one witness. That witness was a person who went to the 'party' and said words to the effect that, "I was there but I didn't do anything. I left before anyone damaged anything, and when I got back the place was a mess." The Crown Prosecution Service dropped the case and after several months revived the case with the same weak evidence.
This case got all the way to a trial where two weeks had been set aside for the trial. The Crown Prosecution Service had clearly been concerned about the weakness in their evidence and instructed a barrister with 25 years experience to prosecute their case. Surprise, surprise their main witness who said, "I was there but I didn't do anything. I left before anyone damaged anything, and when I got back the place was a mess," did not turn up to give evidence. It was clear that the witness for the prosecution had not told the truth and that vast sums of money had been wasted preparing and prosecuting this case. Although the started it came grinding to a halt when the prosecution requested a short adjournment to find their witness.
Once the prosecution confirmed that they would not be in a position to locate their witness they asked if all the defendants in the case would like a bind over. Although there was some reluctance to accept bind overs where some defendants denied committing a crime, all defendants saw the logic in accepting a bind over which is not considered to be the same as a criminal conviction, rather than run the risk of a Magistrates Court convicting the defendants on the basis of mere presence at the scene.
Professional solicitors rules prevent me from acting in a dual capacity as a solicitor and an appropriate adult for a young suspect.
In my experience there are a number of different types of appropriate adults:
- Inappropriate appropriate adults - these are usually parents who act very calmly before they get in to a private room with their child, but when in the room they let rip with either a torrent of abuse against their child for dragging them to the Police Station or even sometimes physical chastisement.
- Co-defendant appropriate adults - there are occasions when parents go offending and they drag their child with them, and sometimes the Police arrest the child not knowing that the parent was in fact involved in the offence.
- "Don't care" appropriate adults - in this category you often find that a parent has not attended but some close family relative or family friend. These appropriate adults are just at the Police Station for the purposes of being there and have no interest in the young suspect at all.
- Vocal appropriate adults - these appropriate adults tend to take over the interview procedure. Although appropriate adults are told that they are not expected to sit merely as an observer in an interview the level of interruption caused by a vocal appropriate adult can sometimes get so much that the young suspect does not get a chance to properly answer questions because the appropriate adult keep interrupting.
- Social worker appropriate adults - some young suspects that I deal with have their own social worker and on occasion these poor souls get dragged down to the Police Station to deal with their 'wards'. Nine times out of ten social workers are very good appropriate adults as they rarely disrupt the procedures unless they have a genuine concern for the young suspect.
- Volunteer appropriate adults - this group of appropriate adults deserve some kind of reward for the thankless work they provide. Volunteer appropriate adults are not paid but give up their time to attend at Police Stations to assist young suspects who do not have an adult to call upon to help them out at the Police Station.
I recently dealt with a young suspect at the Police Station, and the whole case should have probably lasted one hour from the time I arrived until the time I left the Police Station, the delay in dealing with the case was down to the appropriate adult. I arrived at the Police Station and was given disclosure by the Police suggesting that a push bike had been stolen, that they had arrested a 'usual suspect' but he had denied the offence, and then my Client had walked through the door of the Police Station with a note from the 'usual suspects mother' saying that her son was innocent and that my Client would admit to the offence!
I discussed the matter with my Client and his father who had attended at the Police Station as the appropriate adult. The father fell in to the category of a vocal appropriate adult. Before I had a chance to discuss the offence I had been given my Client's life story with precise detail on his current schooling circumstances. My consultation was interrupted by the Police on at least three occasions because of the length of time it took. I eventually gave my advice, dealt with the interview and left the Police Station after three and a half hours. The father took a lot of convincing and felt that his son had a moral duty to admit to anything that he had done wrong - it took a long time to convince the father that with a lack of evidence his son's case would be dropped if he went "no comment" in the interview, and that it was probably for his sons best welfare that he did not go to Youth Court and start associating with young people who regularly commit crime and have no intention of changing their ways. On this occasion my efforts to convince the appropriate adult to act in a 'non-vocal' way reaped rewards for his son.
When I am told that a Police Station matter is ready to interview and an appropriate adult has been arranged I am always curious to see what kind of appropriate adult has attended.
Wednesday, November 07, 2007
The Police did trial video interviews a number of years ago to see whether playing a video of an interview at trial would have any impact on a Court or jury. When I used to work in North London there was a particular Police Station that was part of the Home Office pilot to test video interviews. The Police still have a code of practice governing how video interviews should be conducted, but, to my knowledge the Police rarely video interview suspects, if at all. The interviews that I dealt with that were video recorded were fairly useless - they consisted of drug addicts admitting to shoplifting matters, or youths denying being carried in stolen cars. I cannot recall a person being interviewed for a mildly serious offence. Each video would capture a view of the entire room, and a close up shot of the Client.
Most people assume that Police interviews are very exciting. They are not, they are usually very dull, unless you have either a very clever Police Officer of a very stupid Police Officer. The clever Police Officer will keep a solicitor on his toes by asking questions that are well thought out and are based on matters that have not really been disclosed in full before the interview started. The stupid Police Officer will ask repetitive questions that even the dimmest Client can answer with ease, or ask questions that are just so stupid that they become amusing. Over the past weekend I encountered a 'stupid' Police Officer:
Q: When you fell asleep how long were you asleep for?
A: I don't know. I was asleep.
Q: Did you look at the clock?
A: I fell asleep outside, there wasn't a clock.
Q: What happened when you were asleep?
A: I don't know as I was asleep.
Q: Were you aware of anything happening when you were asleep?
A: Jesus! I was asleep man! Why do you keep asking me questions about when I was asleep!?
I did watch a number of the video interviews that I had been present in. They were just as boring to watch as they were to be present in. I cannot see how anyone thought that these interviews would be good for a Court or jury to watch. I can understand the logic behind the idea of a Court or jury being able to see the reaction of a Defendant when answering a question, or how a Defendant answered a question in interview but the reality is that most defendants sit calmly in their interview and act rather calmly. It is rare for a defendant to do anything of note in interview such as say, "I'm bored of your questions, no comment," then pull their jumper over their head and say nothing more.
In the vast majority of cases the actual audio tapes of the interview are not played back to a Court anyway. The CPS will prepare a summary of what was said in the interview, that summary is served on the defence, and the defence agree the contents of the summary. When a case then goes to trial the summary of the interview is read by the Court so they do not have to sit through an entire interview from start to finish. In recent years I have not heard an interview tape played to a Court, and that is probably for several reasons:
- Most interviews have to be edited because the interview contains details that the Court should not know about. For example the defendant may have been arrested for multiple offences but is only being put on trial for one offence, or the defendant mentions the facts that they have been arrested before implying that they have previous convictions.
- Interviews can go on unnecessarily for a long time and it is easier to read an interview summary than hear the whole tape.
- A trial can be heard in a shorter period of time if the bench can simply read the interview instead of having to hear it.
Video interviews of suspects in my opinion were useless and will continue to be useless.
Today I appeared in front of District Judge Cooper representing a Client who was in custody, and had pleaded not guilty to an assault charge. When the Court case was called on after lunch Mr. Cooper strolled in to Court, sat down and said, "What's this all about then?" The Clerk explained that the Client had pleaded not guilty to an assault and that a trial was going to take place in a few weeks time. Mr. Cooper then said, "Does he really want to plead not guilty? Let's have a look at the papers." He was then passed the case summary from the prosecution and said to the Client, "Why have you hit this man? That's an awfully silly thing to do. You have been in custody for a week. Let's see if we can sort this out." Mr. Cooper then looked at the Client's previous convictions and said, "He is on a community order, he will never finish that will he? Does your Client really want to stay in custody until his trial date? He will probably get convicted." At this point Mr. Cooper was using his distinctive charm and style to get my Client to change his plea. I took the opportunity to seize the moment and asked Mr. Cooper what he would give my Client if he did change his plea - to my surprise Mr. Cooper suggested he would revoke my Client's existing sentences for community service and let him walk out of Court with a Home Detention Curfew Order (otherwise known as a tag). At this point my Client summonsed me over and said that he wanted to change his plea. After a brief discussion my Client stated he was more than happy to accept responsibility for the assault if he would be released immediately and that he would not have to continue with his community service.
The end result of the hearing was Mr. Cooper cracked the trial, the Client walked out of Court after regaining his liberty, and there were smiles all round. Personally I was happy that the Client had decided to change his plea because the evidence against him was overwhelming and very likely to result in a conviction had the matter gone to trial and the witnesses had attended.
About a week ago I went to a local Police Station and arrived about 4.00 pm. When I arrived there was a rather jolly chap who could be heard banging on his cell door with a certain rhythm. He would bang on the cell door twice and then shout, "Solicitor," then he would bang twice again and shout, "Cigarette," and he kept banging twice and shouting words such as, "Medication", "Food", "Inspector". It was quite clear from the tone of voice used by the detained person that he was not being aggressive but was eager to get some attention and have his various needs dealt with. I did enquire with the custody staff at the Police Station and they told me that the man had indeed had access to legal advice and that he simply would not accept the fact he had been refused bail and had to stay the night at the Police Station. I was at the Police Station for about 2 and a half hours and during this entire time the man in the cell continued with his banging. I left the Police Station and came back some three hours later and still the man was banging on the cell door in his rhythmic fashion.
Today I went to the cells of my local Court and it was rather busy. All of the cells were occupied and before I got in to the cells I could hear that someone was banging loudly on their cell door and shouting aggressively. When I got in to the cells I realised that it was three men who had all been sentenced to prison terms that day, and they were banging together to vent their frustration at being in custody. The difference between the man at the Police Station and the three men at Court was the man at the Police Station was pleasant with his banging whereas the three men were just objectionable - their style of banging and shouting simply annoyed those who could hear it.
I have never understood why people bang on their cell doors as it usually means that whoever is looking after that person, whether it be Police, or Court staff, immediately turn against the person and decide that if they are banging then they will be the last person to get any form of service. I have yet to see a person bang on his cell door and get what he wants.
If you do decide to bang on your cell door adopt the style of banging that the man at the Police Station did - it is far easier on the ear and is rather amusing, even when it is performed for several hours.
Monday, November 05, 2007
It is planned that when people plead guilty to offences that would normally require an adjournment for a pre-sentence report to be produced by the Probation Service of about three weeks that the report will simply be done on the same day that the person pleaded guilty. This is fine by me, provided that the reports will actually be produced and will be of some use to the Court. I am quite happy to deal with a case in one hearing rather than several. An example of how the system does not work is when an HGV driver appeared in Court, pleaded guilty to being three times over the drink drive limit when driving his HGV. The Court asked for a new style Fast Delivery Report from the Probation Service. The Probation Service did not have enough staff to prepare the report within a 'fast' period and the case simply got put in at the back of the Court list. The report did nothing more than confirm what the HGV driver said in his interview with the Police, it did not look at any background issues, and most importantly it made no reference to the underlying issue as to why the HGV driver was in Court - his alcohol problem. When the case came back in to Court the HGV driver was sent to prison for three months - why you may ask? Because is was obvious any person who was drink driving whilst in control of a large articulated lorry should be sent to prison for public policy reasons! The report should not have been asked for because it was obvious only custody would be imposed. The Probation Service were lacking suitable staff to complete the report anyway.
Another example of the failing system is that for the system to speed up all parties have got to move up a gear. In one case a solicitor could not advice his Client on the evidence because the main evidence was CCTV footage in a public order incident. The CPS had statements referring to the CCTV and presented their case on the basis of the CCTV - but the CCTV was not on the CPS file, it was still in the hands of the Police who had not provided it to the CPS! The Court did comment that they were well aware that the Police had been given substantial funding to provide CCTV at first hearings and told the Prosecutor to go across the road at lunchtime to collect the CCTV!
These might seem like small points but the real thrust of CJSSS is that you can get from the start of a case to the end of a case far quicker than you can currently. In my local area if you plead guilty and have a Magistrates Court trial it will take between four to six months for your case to be concluded. Under CJSSS it is expected that cases will be concluded between six to ten weeks from the first date of hearing. I am comfortably predicting that I will see a return to the bad old days when cases were listed for trial so quickly that there was insufficient time to deal with real legal issues such as disclosure. I am of the firm opinion that with fast trials the Police will not be in a position to deal with all of their evidential and disclosure duties and turn up to trials more regularly with new evidence that has not seen the light of day before.
The idea behind CJSSS is very good, cut delays and waste out of the system. Defence solicitors are usually fairly small organisations that can adapt well to change. Unfortunately organisations like the Police, Probation and Her Majesty's Court Service are unlikely to be in a position to adapt so fast even though CJSSS has been planned for many months.
It has been suggested to me that there is a different meaning to CJSSS - Criminal Justice Same Stupid Sh*t. I think that the person who came up with that definition has got it right.