Can I Complain Please?

I attended at my local Police Station today to assist a Client who was attending at the Police Station on bail to be reinterviewed. As I was waiting for the Officer to collect my Client and myself I stood listening to a conversation that a member of the public was having with one of the Station's civilian station office staff.

The member of the public wanted to report a number of crimes. He said words to the effect of, "A person I work with has been defrauding a large number of companies out of thousands of pounds by using a false identity." The station officer replied, "Are you the victim?" The member of the public then explained that he felt it was his civic duty to report the matter to the Police, but no, he was not the victim.

The conversation then consisted of a five minute dialogue where the member of the public was told that because he was not the victim of the fraud he was not entitled to make a complaint, and that he should tell the victims of the fraud what was going on so that they could then decide whether or not to prosecute the matter. It was quite clear that the member of the public was unhappy with the advice as he repeatedly explained that he was a witness to several of the frauds and only wanted to help.

The member of the public was finally turned away, he walked past muttering, "Why do I bother to pay my council tax?" I did speak to the member of the public, as I knew him, and told him that if he did want to make the complaint he would be able to speak to someone that was interested in taking the complaint - he just needed to get past the barrier that the current station officer had created. He told me he would try again another time.I was somewhat surprised by the attitude of the station officer - they are the point of contact between the public and the police and she had given blatantly bad advice. The member of the public was entitled to make a complaint and the Police should have acted pro-actively in taking the information and then deciding what to do with that information when in possession of it.

The suggestion that only the victim could decide whether or not a prosecution should follow on from the complaint was completely wrong. I deal with many cases of domestic violence where the complainant withdraws their complaint but the prosecution continues on the say-so of the Crown Prosecution Service.It must be terribly demoralising for someone to make the effort to report a suspected crime to the Police to be told to go away. How would the station officer deal with a call from a member of the public who said, "I am witnessing a nasty assault, the man has just hit the other man round the head with a hammer?" Perhaps they might reply, "Sorry, sir. You are not the victim of an assault - perhaps you could get the victim to give us a call... What did you say? Well, when they get up off the floor out of their pool of blood could ask them to call us."

What this comes down to is sheer laziness on the part of the station officer.

How Odd

I read most of the media headlines published each day. there are a few stories every now and then that stick out. An article from the Times caught my attention today. Apparently a jury acquitted a man of murder and then some of the members of jury waited to see the Defendant to hug him!?

A pensioner who was accused of killing his partner and then confessing to his pet cats was cleared of murder and manslaughter today – and then hugged by members of the jury before leaving the courtroom.

Mr Henton, 73, from Neath, South Wales, was accused of brutally bludgeoning his long-term partner, Joyce Sutton, to death after "snapping" in January 2006.

There were gasps from the public gallery at Swansea Crown Court as the forewoman of the jury declared Mr Henton not guilty of either murder or the alternative charge of manslaughter.

I have not heard of jury members hugging a defendant before. I have had a few hugs before when I have managed to get Client's acquitted of matters.

The jury system seems to be breaking down as jurors are either speaking out about decisions they did not agree with, or they seek some kind of fame from the trial that they were involved in. As an advocate who regularly appears at the Magistrates Courts I am used to the bench making decisions and then giving reasons for those decisions. A lot of the time the reasoning for the decision appears to be based on a 'stock' answer - but nonetheless they give a reason for their decision. Juries do not give reasons for their decisions, and in fact, that is the great mystery of the jury system. The deliberations in the jury room are matters that are not subject to any scrutiny, because the deliberations are confidential.

What will a jury member do next? Perhaps they can disagree with the majority verdict given and assist a defendant appeal against conviction based on their knowledge of the reasoning behind the decision?

Dropped Cases

The Times has published an article setting out that last year more than 2,000 cases were thrown out of Court as the case was not ready:

More than 2,000 cases that should have gone to trial in the Crown Court were thrown out last year because they were not ready, a watchdog says today.

The cases involve serious offences including burglary, theft, assault occasioning actual bodily harm, possession of drugs and possession with intent
to supply drugs.

The inspectors of the Crown Prosecution Service (CPS) say today in their report on the performance of the service that even though this throw-out rate is better than it was, it remains poor. In total 2,325 cases were lost because prosecutors were not ready to proceed.

The cases come before magistrates, who decide if the cases should be sent to the Crown Court for trial. Under pressure not to grant repeated adjournments for prosecutors, magistrates are increasingly taking a tough line and discharging cases when papers are not ready, evidence not complete or witnesses not lined up.

I am not sure why this has become a news story because this has been happening for years. The full text of the report is an interesting read for a laymans view on the sheer number of cases that are dropped by the Crown Prosecution Service.

The Times article starts off by referring to what is known as committal proceedings. That is where the Client has elected to have his trial in the Crown Court, or the Court had stated that the Client's case is too serious to be dealt with in a Magistrates Court. The whole purpose of committal proceedings was originally to test the evidence in a case to ensure that was a prima facie case to be moved to the Crown Court. If the case was lacking in evidence then the case would be dropped, usually with a warning that the case may be revived if the evidential defects could be corrected. Before I started my job committal proceedings would involve all of the witnesses coming to Court and giving their evidence orally to Court in a mini trial, and submissions would be made to the Court on the basis of the evidence. If those submissions were accepted the case would be dismissed, if the submissions were not accepted the case would be moved to the Crown Court. The procedure was changed over time so that witnesses did not have to give oral evidence at committal hearings and that written statements could be relied upon instead. Now committal proceedings are simple:

1. The Client pleads not guilty to an either way offence and either the Court declines to deal with his case at the Magistrates Court, or the Client elects to have his case dealt with at the Crown Court;
2. The case is adjourned to allow the Prosecution time to prepare a bundle of papers containing statements setting out the evidence against the Client;
3. That paper bundle is served on the Court and the Defence Solicitor. The Defence Solicitor then informs the Court and the CPS whether or not the Client consents to the case being moved to the Crown Court on the basis of the strength of the evidence in the papers;
4. If the CPS do not prepare the evidential papers in time the Court will usually allow an adjournment for the CPS to have extra time to prepare their papers. But, if the case is not ready on the next hearing date the Court will usually refuse a further adjournment unless the case is of a more serious nature;
5. If the Defence Solicitor does not consent to the case being committed to the Crown Court a further hearing takes place where submissions are made to the Court that the papers do not establish a case against the Client - if this submission is successful the case is dismissed by the Court. If the submissions are unsuccessful the case is moved to the Crown Court.

Schedule 3 of the Criminal Justice Act 2003 contains provisions to do away with committal proceedings. There were widespread rumours a few years ago that the government were going bring in to force the new provisions in the Criminal Justice Act 2003 to abolish committal proceedings but so far these provisions have just remained on the statute book without coming in to force.

There really is no excuse for the CPS not to be ready for committal proceedings on time - and in my experience the vast majority of the cases that are not ready for committal are due to the Police not providing evidence that the CPS had previously asked for.

Waste of Time

When I was on call recently I received a call from the Defence Solicitor Call centre informing me that one of my firm's Clients had been arrested and detained for breaching his bail conditions. When a person is arrested for breaching their Court bail conditions the Police have to produce the Client before a Court within 24 hours of the arrest, or 48 hours if the arrest if a Court is not sitting within the next 24 hours. If the time limit is exceeded the Client must be released without any action being taken.

I telephoned the Police Station and spoke with one of the helpful Custody Sergeants. He told me that the Client had been arrested at 9.50 am that day but the local Court had refused to accept the Client at Court as his paperwork had not been completed by the Police. This meant that at 9.50 am on a Saturday morning the clock had started to tick and the Police and Court had to work together in order to get the Client before the Court on Monday morning at 9.50 am to ensure they were within the 48 hour time limit. At this point both the Custody Sergeant and I agreed that it was pointless to detain the client because it was extremely unlikely that the Client would get before a Court within the 48 hour time limit simply because the 'system' does not work efficiently. I did suggest that my Client should be released but the Custody Sergeant stated he must at least try to get the Client before the Court.

The 48 hour time limit approached and one of my colleagues went over to Court to deal with the matter. He arrived in the Court building at 9.15 am. The Client was moved from the Police Station to the Court and arrived around 9.30 am. The Prosecutor came in to Court on time and had the papers. The Court Clerk came in to Court at 10.05 am. As a result of the case not being called on by the Court Clerk at 9.50 am the Court had to release the Client.

Although the minor breach of bail had rightly resulted in the Client being detained it was foreseen at the start of the 48 hour period that his detention was probably going to be pointless, and in fact it was.

Poor Advocates

Advocacy is one part of the job of being a criminal solicitor. I have worked with people in the past who shy away from representing Clients in Court, as they prefer to work in the office or at the Police Station. I have never understood why a litigator would not enjoy standing up in Court and making their points to the tribunal. I personally think that advocacy is the best part of my job.

Yesterday I sat wearily in Court waiting for one of my cases to be called on. When you are waiting for cases to be called on in Court you can pass the time by doing a number of things. You can sit and chat about local issues with other professionals. You can try to get work done on other files. You can go and find refreshments and have a cup of tea. There are endless possibilities that you can involve yourself in to fill the time until your case is called on. I prefer to sit and watch what is going on in Court. Whilst watching the other cases in Court I saw a young advocate get to her feet, and immediately she started doing things wrong.

An advocate is the voice of the Client, if the advocate is not going to stand up and do a job good the Client might as well do it themself. If an advocate does a poor job then they have done a dis-service to the Client.

The particular advocate that I was watching was quite clearly young, and new to the job. They stood up and started to address the Court with a quiet voice. A quiet voice is never a good thing because you cannot be sure that the tribunal can hear what you are saying, and if they cannot hear you they will not understand what you are saying. The young advocate was asked to speak up within seconds of her addressing the bench.

The advocates Client had pleaded guilty to an offence, and the Prosecutor had given the facts of the case to the Court. When the advocate stood up she said words to the effect of, "I would request that this case be adjourned for the preparation of pre-sentence reports." That phrase was widely used a few years ago in any case where the advocate was of the view that the Client was likely to get either a community penalty or be sent to prison - it would trigger an adjournment because the Probation Service were not geared up for providing Courts with almost immediate reports. With the advent of a government programme called 'Speedy Summary Justice' the Probation Service can usually provide a Court with a pre-sentence report on the same day as it is asked for. The advocate had probably been told by a colleague or her boss just go and ask for an adjournment, it'll be alright.

The advocate was quickly told that her request would be refused by the Bench. She then stood there in silence not knowing what to say next. Thankfully the Court Clerk then suggested the case should be put back for a short period whilst the Probation Service prepared a short pre-sentence report that day.

Fortunately I left Court after my hearing and did not see the advocate on her feet again. She will have learnt a valuable lesson in advocacy by her experience at Court: "Know your tribunal". As an advocate you should never ask the tribunal to do something that you know 100% they will not do. Although the advocate may have been new on her feet her current advocacy skills certainly need a great deal of work.

Free CPD

The Solicitors Regulation Authority is responsible for making sure that solicitors ensure that they keep up to date with changes in law and procedure. This is done by requiring that solicitors obtain 16 Continuing Professional Development (otherwise known as CPD) credits each year. Generally speaking 1 hour of study or attendance is equal to 1 CPD credit.

Solicitors have to obtain at least four CPD credits a year from having attended at external courses, the other 12 CPD credits can be obtained by a variety of other means. Courses offered to train solicitors in order to provide CPD credits are usually quite expensive. Some of the courses are very good because the speaker is knowledgeable and actually provides a genuinely interesting format of information.

It is possible to obtain CPD credits at no cost. Solicitors can record the fact that they have read or studied a subject for a period of time and self certify that they have qualified for a CPD credit. In house training is another source of free CPD credits.

I have recently set up a free CPD scheme on the Criminal Solicitor Dot Net web site. This project was funded by donations from members of the Criminal Solicitor Dot Net web site and does offer genuinely free CPD credits. If you are a solicitor working within the criminal justice system you might want to have a look at the free CPD scheme as it can provide up to 12 CPD credits per year at no charge.

Private Investigator

Criminal defence firms are getting jumpy as 14th January 2008 approaches. On 14th January 2008 new General Criminal Contracts begin for firms who are still undertaking legal aid criminal defence work. On 30th November 2007 firms had to declare how many duty solicitors they employed as of 30th November 2007 in order to be awarded rota slots on duty solicitor rotas for police station work and magistrates court work. So if you had more duty solicitors declared for your firm on 30th November 2007 than you had previously you would be awarded additional rota slots. Although rota slots do not always generate masses of work they are always a good opportunity to pick up extra work, and every now and then you can pick up a good case from being a duty solicitor.

What I am about to describe has come from a series of Chinese whispers and could be entirely false - even if it is rubbish it is entertaining rubbish. A firm in Basildon also has other offices, and it is rumoured in order to get more slots on the Basildon rotas the firm pretended that some of it's solicitors based in other offices had moved to their Basildon office. This was interpreted to be a scam by another firm in Basildon who decided to hire a private investigator to follow the newly proposed solicitors to the Basildon rotas and the private investigator discovered that the newly proposed solicitors were in fact based in a London office. So, the other firm in Basildon made a complaint to the Law Society that the first firm was not "playing by the rules". The firm that was running the scam has now started legal proceedings against the other firm for defamation!

The above story shows how desperate some firms are getting in the new age of criminal legal aid.

Weird Stories in the Media

Whilst browsing through news stories today I came across two distinctly odd news reports.

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.