BlackBerries

I have a BlackBerry that is a work phone that I walk around with all the time. The BlackBerry is always charged and even sits on my bedside cabinet overnight. I am rarely more than 2m away from my BlackBerry.

Why do I keep this device so close to me all the time? There are a few reasons:

1. It is a phone and it does ring every now and then.

2. I get sent so many messages if I do not read them as they arrive I end up with 150 or so messages to read every workday.

3. I like to keep on top of what is going on with my cases and my colleagues movements.

The problem with my addiction to my BlackBerry is that when I go on holiday or go abroad I feel lost without my BlackBerry.

The Wife hates my BlackBerry.

Technology

I was doing a number of plea and case management hearings yesterday, one of which was by video link.

Unfortunately the prosecutor arrived and gave me a new indictment which rather upset the planned pleas for the hearing. The defendant was charged with one offence up until yesterday and then all of a sudden he is being prosecuted for two offences.

If the hearing was not by video link I would have simply gone down to the cells and spoken to the defendant to discuss the change with his case. The problem was I had already spoken to the defendant in the prearranged conference slot before the hearing and I was given the new indictment two minutes before the hearing.

During the hearing the Court attempted to connect to the prison so that the Court could see the defendant and the defendant could see the Court - but due to problems it took something like 35 minutes for the equipment to work and that was after several reboots. It would have been quicker for the defendant to be brought directly from the prison to Court when they realised that there was a problem with the equipment.

When the equipment worked I had to ask the Court to for further time to discuss the recent developments and the Judge decided the quickest way to do this was simnply to clear the entire Court.

The hearing that was estimated to take 15 minutes to complete in fact took some 50 minutes. Video linkl technology is supposed to speed up proceedings and reduce costs by dispensing with the costs of bringing a prisoner to Court. Yesterday was a fine example how technology sometimes causes extra delays in Court hearings.

Guilty Pleasure

I quite enjoy watching Silk on BBC One - but it is a bit of a guilty pleasure.

I have watched tonight's episode and have again seen many errors in how matters proceed in Court - but I am sure that these errors are either unintentional or created in order to make the programme more entertaining. I could not work out why evidence was being given in Martha's case when it appeared to be a guilty plea - there was no apparent issue in the facts that suggested there was a dispute that required a Newton hearing. The hearing was not a trial as there was no jury present in Court. It was just odd. In Clive's case the level of abuse between the prosecutor/defence advocates and the witnesses was terrible. There were also errors where people were questioned about their previous convictions without there being any application to seek the Court's approval to have permission to ask them about previous misconduct. Also, questions about previous sexual conduct of the victim would have had to be approved by the Court before they could be asked.

Despite the errors I was still entertained. Views on Silk in the legal profession seem to be divided. Some enjoy it as I do, others find that they cannot stand to watch the programme.

Southend Magistrates Court in the Papers

The Guardian has today published an article on one of my local Magistrates Courts.

I was not at Court on Monday so I cannot take the credit for any of the defence representations.

Magistrates Courts lists are sometimes full of what appear to be relatively mundane cases. Each case has it's own story which is very important to all parties involved in the case - that being the defendant, the victim and those who represent those individuals. Each case would have been a battle that was hard fought on either side.

What is described in the article is "bread and butter" work and represents what defence solicitors and prosecutors do day in and day out in Magistrates Courts up and down the country.

Free CPD Point for Solicitors

The Solicitors Regulation Authority is running a free webinar on Quality Assurance Scheme for Advocates where solicitors can earn one free CPD point.

If you are interested in a free CPD point follow this link.

I Better Finish This Off

Last year I dealt with a plea and case management hearing where I had an informal chat with the CPS lawyer. The case was odd in that it involved a scuffle in the street with a knife. The case was odd because the people directly involved in the scuffle had not given witness statements and the only person who was involved in the scuffle and the proceedings was the Client. Witnesses had provided statements suggesting that my Client had been attacked by two men, other witnesses suggested that my Client had attacked the two men.

My firm had written to the CPS suggesting that they should not continue to prosecute the case because their evidence was contradictory and the Client had a valid defence for having the knife. When I got to the plea and case management hearing the Client was wavering and suggested that he wanted to plead guilty despite his defence to try to reduce the risk of being sent to prison.

I spoke with the CPS lawyer and asked if the CPS were considering dropping the case and was told that they were going to continue. The Client pleaded not guilty and his case was adjourned for a trial. I later found out that the CPS lawyer had been concerned about the case but decided to continue because he had heard me mention at an earlier hearing that the Client may consider pleading guilty to bring the case to a swift end.

When the case was listed for a trial I made sure that my diary was free so that I could do the trial as I felt I had an obligation to finish the case off as my comment appeared to be one reason why the case was continuing. I am pleased to report that my Client had a trial and was eventually found not guilty.

I sometimes wonder if my input in to cases does have a real impact which changes the outcome of a case in a positive way. I would like to think that my decision to finish the case had a real input in securing the acquittal of the Client.

Hello Again

Is anyone still out there?

I have not posted anything here for a long, long time.

Where have I been? Nowhere really, I am still doing criminal defence work in Essex.

Things have changed in my world. I was working for a firm of solicitors which faced the prospect of imploding due to differences between the Partners and the direction they each wanted to take the firm. I am very pleased to report that my entire criminal department got up and joined an existing major crime firm in Essex.

The world of crime has remained very similar - there are still too many people out there chasing a ever decreasing pool of money to make a living. The government is still hell bent on cutting fees for legal aid work.

My work has diversified. I am now spending more time in the Crown Court than anywhere else. I have prosecuted cases in behalf of a local Council. My firm has also become a preferred supplier to prosecute Probation breaches in the Crown Court.

If people are still out there reading this blog then I will carry on posting about the murky world of a criminal solicitor.

Why The CPS Is Not Delivering Justice

Question: why is the CPS not delivering justice?

Answer: Read this.

Conflict of Interest

I spent seven hours yesterday afternoon and evening at a Police Station dealing with a Client. The case I dealt with was really quite serious and the evidence against my Client was pretty poor - the case needed a positive identification in a video identification procedure before the Police would have enough evidence to go to the CPS for the CPS to authorise a charge.

I got to the Police Station just after 4pm. After a short interview the Police announced that they were going to carry out a video identification procedure. The identification procedures took from 6pm through until 10.30pm to be completed. During that time my Client's video image was captured, eight "stooges" from a Police database of several thousand people were selected. Some video editing was undertaken by the Police Identification Officer to pixelate out my Client's tattoos. I then previewed the video parade and ultimately I was present when the two witnesses viewed the video identification parades.

I was tired yesterday. The fact that I was at the Police Station from 4pm until after 11pm made me grumpy - especially as it was not my turn to be on call. I could have phoned my colleague who was on call yesterday and told them to get down to the Police Station but I did not think it was appropriate to just leave the Client - I generally do not like to leave Client's in the middle of a case.

Whilst I sat observing the two witnesses view my Client in the video identification parade I had a sudden conflict between my urge to see the Client released from the Police Station and the thought that if he was not identified it was likely that the case against him would be dropped. This was a horrible thought as it was a conflict between my natural desire to do my best and achieve the best possible result for my Clients, and, the business instinct that a Police Station case that turns in to a Crown Court trial can be a case that generates a reasonable fee. Thankfully when the second witness identified my Client I felt a sense of disappointment that my Client was going to be charged with an offence and was quite likely to be kept in custody for the foreseeable future.

HCA - Finally

Today I received a certificate in the post from the Solicitors Regulation Authority. This certificate approved me as a Higher Courts Advocate for criminal proceedings giving me the ability to appear in all criminal cases before a Crown Court, Court of Appeal and the Supreme Court.

Although it is rather pleasing to have finally obtained the title of Higher Courts Advocate or Solicitor Advocate it is rather daunting knowing that at some point in the future I am going to be thrust in to the Crown Court for a trial in front of a Judge and Jury. I regularly deal with trials in the Magistrates and Youth Courts and it has been may years since I felt out of my comfort zone in a summary trial.

I have done work in the Crown Court as an advocate using what rights of audience a "normal" solicitor has - those being Crown Court bail applications, committals for sentence from the Magistrates Court, appeals against sentence and even appeals against conviction.

My career has spanned some 12 years in criminal law now. The first few years were filled with a burst of activity in obtaining new qualifications. First of all I became a trainee solicitor, then I obtained accreditation as a Police Station representative. I then qualified as a solicitor and subsequently became a "Duty Solicitor". I have waited about nine years for my next qualification - my status as a Solicitor Advocate. I am not sure that there are any further professional qualifications a criminal solicitor can obtain that would of any real use in a career in criminal defence work.

Now I am just waiting for my first proper brief to appear in the Crown Court.

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.

Christmas List

I went out over the weekend with the wife and did some Christmas shopping. My wife is very organised and I suspect that by next weekend she will have dragged me around all of the local shops and will have finished off our Christmas shopping for 2007. Whilst I was out I was with my two kids and we were looking at the Nintendo DS games. I have seen that another Ace Attorney game has been produced. I have not had the pleasure of playing any of the Ace Attorney games yet but I might just send Santa a letter asking if he would be so kind as to get me Phoenix Wright: Ace Attorney Justice For All as a Christmas present.

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.

Send Him Down

I went to a Youth Court recently to represent a young man where he was due to be sentenced for an offence of assault occasioning actual bodily harm. ABH is an offence that can span a wide range of injuries from the fairly trivial to the rather serious. This particular case involved my Client stamping on an individuals head with one blow.

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.