Means Tested Legal Aid

A new legal aid system has been introduced, and as from 2nd October 2006 criminal legal aid has reverted to means testing. To get legal aid for a criminal case you now need to pass the interests of justice test and the means test. For the past seven or eight years you simply had to pass the interests of justice test.

What is the interests of justice test? It is simply qualifying the need for a solicitor. For example if you apply for legal aid and there is a pretty good chance you could go to prison due to the seriousness of the case you would usually be given legal aid. Also if your case involved a complex area of law then you may meet the interests of justice test.

The means test is back, but in a new way. Means testing used to exist, but it was abolished because it was believed that means testing was too expensive to actually collect in money that people had to contribute to their legal aid if their income fell between certain levels. I like the idea of means testing, those defendants who can afford to pay for legal services should pay for them. Those Defendants who cannot afford to pay for legal services should qualify for legal aid. The Legal Services Commission has been behind the reintroduction of means testing and they have made a right pigs ear of it.

Here some examples of why applications have been rejected recently:

The form had been filled out in blue ink and not black ink.

The ethnicity part of the form had not been completed to specify the applicants ethnicity

The application of a 12 year old youth had not specified whether or not he had a marital partner

The application submitted before the first hearing did not contain a copy of the applicants previous convictions even though these are not available to defence solicitors until the first hearing

Many defence solicitors, including myself, are aggrieved by the attitude of the Legal services Commission over means testing. They have somehow managed to move the job of processing legal aid applications from experienced Court staff to administration staff who have had no experience of the interests of justice test, or have any practical experience of Court work to know how to apply the interests of justice test.

The real problem with the new means testing scheme is that applications for legal aid cannot always be processed on the first hearing when the Defendant appears in Court. For example, my local Court is served by a central administration office. If I want to lodge a legal aid application it has to be sent through the post or document exchange to an office, I then have to wait two days to find out if the application has been granted. Now this all sounds fine until you realise that there are Defendants in Court without time to make an application for legal aid. If I represent a Client for a matter at the Police Station they might appear in Court within 24 hours having been refused bail by the Police - and in these circumstances I cannot ensure that legal aid is in place before the Client appears in Court wanting to be represented. In reality the Legal Services Commission want solicitors to gamble and to guess when legal aid will be granted. There is no way for me to recoup losses (other than ridiculously small fees) if I have spent the vast majority of my time at Court for a Defendant who has been refused bail by the Police and is also refused legal aid several days later!

The Derek Hills of the Legal Services Commission, and Vera Baird QC of the Department for Constitutional Affairs, have shown utter contempt for legally aided defendants over means testing. There are some very real issues such as young defendants remaining in custody for longer than is necessary whilst legal aid applications are resolved. The UK has a record of locking up a higher percentage of the population than other European countries, we also lock up more of our youths. Means testing is adding to this issue. At a meeting on 2nd October 2006 I was told by the head Clerk that if Defendants have to remain locked up in order to process legal aid applications then so be it.

2nd October 2006 was the date for the reintroduction of means testing, it will go down in my diary as Black Monday.

Where Have I Been?

Apologies to my loyal readers for the lack of posts recently but I have found that my time has been taken up racing all over the place with work, I have been left with little time to tap away at my keyboard to post messages on this blog.

Where have I been in the past two weeks then? I have made three trips to Ipswich Crown court to get a difficult rape trial off the ground. It is often good practice for solicitors who have conduct of serious cases to attend at the first day of a trial to ensure that any pre-trial issues such as disclosure, or last minute conferences between the Client and defence barrister, go smootly. I have been to two very long conferences with Clients and their barristers in London for impending trials. I have visited the Police Station on various occasions. I have been to various local Magistrates Courts defending the innocent and the needy. I am now in the position where I actually want to be in my office for a period of time to finish of administrative paperwork. Today I went off to my local Magistrates Court and dealt with four cases before lunch, I then went to my local prison and spent the afternoon taking instructions from two Clients. I then went directly from the prison to a Police Station and I got home about 9.00 pm.

Victims Advisory Panel - Why?

The Home Office has announced the creation of the Victims Advisory Panel:

The new panel will include people who have suffered from crimes such as burglary, anti-social behavior and hate crime, or who are survivors of victims of serious violent crime.

It will examine the way victims and witnesses are treated and the way their experiences are handled by the criminal justice system, and then make formal recommendations for changes directly to Ministers.

The panel is a critical part of the government's commitment to put victims at the heart of the criminal justice system.

Emotional and practical support
Home Office Minister Gerry Sutcliffe said that, while crime is at record low levels, people are still victimised and their rights must be protected. 'Being a victim or witness of a crime can have a severe and damaging effect. We will ensure that victims have the emotional and practical support they need.'

The panel will work to ensure that victims feel the system is on their side as they go through the difficult process of giving evidence and working with police and prosecutors to ensure that criminals are brought to justice, he said.

Constitutional Affairs Minister Rt Hon Harriet Harman agreed adding, 'Crime victims must get the support they need from the criminal justice system.' The advisory panel, she said, 'will represent the needs of victims, whatever their circumstances.'

Hearing their voices
Kathryn Stone, the panel's spokesperson, is also the chief executive of Voice UK, a national charity for people with learning difficulties who have been victims of crime. She said the panel will provide a critical service.

'Too often the voice of the victim is not heard properly, or not heard early enough. We are looking forward to being the voice of victims of crime at a crucial stage - when policy is first being developed.'

My question is why create such a body? I realise that this post is likely to provoke a nasty reaction from some of the readers of this blog, but I do not understand what our government beleives it will achieve by setting up such a panel. I have read through the proposals that victims should be able to address Courts upon the impact of a defendant's behaviour if convicted, I have also read the proposals that victims should form part of the Parole Board panel that decides if a convicted prisoner can be released from prison. I have yet to see the results of the victims advocate pilot.

The judicial system that exists in the UK has been developed over centuries. One of the key parts to the judicial system is that both the defence and prosecution are adequately represented, and that their submissions to a Court are judged by appropriately trained and qualified judicial office holders. If victims are to be given control of our criminal justice system why have a Court in the first place? Bring back public floggings and hanging. There will be no need for a trial!

Victims of crime deserve to have their voice heard, that is why the Prosecution exists, to put forward the victim's case in Court.

Arghhh!!!

One of my worst nightmares became a reality this week. I had been preparing a matter for a Crown Court trial over the past six months. I had briefed experienced Counsel to deal with the trial. My Client had met the barrister a number of times and was very happy with their service. Everything was looking well prepared and ready for trial.

I got out of my bed and started getting myself ready on the first day of the trial when I received a telephone call from the barrister's clerk. I knew that something would be wrong if I was receiving a call this early in the morning. I was told that the barrister had been injured in an accident and that they were unable to attend Court due to the extent of their injuries. I then said the words, "What are we going to do then?" The clerk said, "I don't know, what do you want to do?" I thought for a short while and then said, "Don't worry, leave it to me".

The case was not the kind of matter where a new barrister could read the papers and be up to speed within a few hours. There was no point trying to get a new barrister to the Court to deal with the matter. I took the matter in to my own hands and traveled to the Court knowing that there would not be a barrister to represent the interests of my Client. On my arrival at Court I spoke with the Clerk who was kind enough to seek the permission of the trial Judge who granted me rights of audience to appear in the Crown Court and represent my Client.

At no stage did I ever think that I should step in the breach and take the case on by actually doing the trial - my point of view was that provided the Judge would give me rights of audience I could then make an application to adjourn the trial in order to arrange new Counsel, allow time for new Counsel to prepare for the matter, and then have a conference with my Client and his new Counsel.

All went well in Court and my trial was adjourned despite the Prosecution barrister being a pedant suggesting that my Client's case could start in the afternoon with a new barrister! I quite enjoyed the experience of exchanging blows with the Prosecution barrister during the course of my application as he had been particularly difficult in pre-trial hearings regarding disclosure.

Once the case had been adjourned I let out a sigh of relief. The nightmare scenario that I had thought about on many occasions had been simple enough to solve. I have now made a mental note that I really should pull my finger out and put the finishing touches to my solicitor advocates portfolio so that I can actually obtain rights of audience to appear in the Crown Court to deal with hearings such as mentions, plea and case management hearings, and trials.

More Doom and Gloom

The Law Society has published a report on the impact that the Carter reforms are going to have on criminal defence work. The Solicitors Journal has published a good article on the bad news that this report delivers:

A report commissioned by the Law Society and published this morning predicts that over 800 legal aid firms could be forced out of business if the reform proposed by Lord Carter goes through as it is. This is twice as many firms as anticipated by Lord Carter.

The report, prepared by LECG, an offshoot of the University of California at Berkeley, warns that typical profits, allowing for all costs, would range from only 2 per cent down to about -6 per cent. By contrast, 'comparative industries' such as financial advisor services, typically expect a ten to 15 per cent profit.

The Law Society states that without higher fees and a rethink of the Carter implementation timetable, the consequences for legal aid will be “disastrous”.

“The Government is trying to make efficiency savings too soon, firms must be allowed to restructure first,” said Law Society Chief Executive Desmond Hudson. “The over-hasty imposition of this change programme on a very fragile supplier base could prove to be disastrous.”

One of the Law Society's biggest fears, backed up by the LECG research, is that no new solicitors will want to practice legal aid work, leading to the reversing of the ageing supplier base. The research highlights a recent survey which found that whilst 60 per cent of student solicitors said they would like to do publicly-funded work, only 21 per cent actually do, due to “perceived low salaries, limited career prospects and poor working conditions.”

Andrew Holroyd, Law Society Vice President, said: “There has been an alarming reduction in the number of law firms doing legal aid work in recent years and there are few incentives for the legal aid lawyers of tomorrow. We will be pressing the government for increases in rates that allow viable businesses to develop and the entire sector to return to health.”

The Law Society is pointing to the recent increase in pay rates for the junior criminal bar and Scottish legal aid practitioners, as evidence there are funds available. It also highlights that the administrative costs for the Legal Services Commission has risen from £62.4m in 1999/2000 to £96.4m in 2004/2005 – including a spend of £605,000 on stationary alone last year.

“The Government’s pledge to provide a ten million pound transition fund to help firms adapt to the new environment is a step in the right direction but given the scale of the change much more support will be needed,” said Holroyd.

The Legal Aid Practitioners Group welcomed the LECG research. Chairman Richard Miller said: ”The legal aid supplier base is very fragile, and needs support if clients are not to lose the services they need. It is in danger of being significantly damaged by the Carter reforms: even treatment aimed at saving the patient may kill if the patient is not strong enough.””

I am keeping my fingers crossed that I do not work for one of those 800 firms mentioned in the report! The reality is that the firm I work for is unlikely in the short term to stop doing legally aided criminal defence work, but in the long term who knows what is going to happen? Oh, I forgot, Lord Carter knows what will happen, perhaps I should ask him if I will still have a job in 10 years time?

Phew

I recently represented a Client for a matter of driving without due care and attention. As the Client's case did not qualify for legal aid they funded their case on a private basis.

The case took about six months to deal with from start to finish. The trial took place recently and I am pleased to report that I secured another acquittal. Before my critics start jumping up and down suggesting that private money has been the root cause for the acquittal let me explain that this is a case that should not have been prosecuted from the start.

My Client was alleged to have been the cause of a road traffic accident. There were two prosecution witnesses who claimed to have seen the accident. The first witness said that a lorry had crossed through a junction and that because of this lorry the 'other' driver was responsible for the crash. The second witness said that no lorry had been at the junction and she had not seen my Client cause the accident anyway.

At the half way point in the trial when the Prosecution had completed their evidence I made a submission of 'no case to answer'. The Magistrates decided that the Prosecution evidence taken at its highest was such that a Court could not properly convict. At hearing this news my Client began to cry at the sheer joy of being acquitted.

I escorted my Client out of Court as the trial for the 'other' driver continued. Most Clients are fairly unresponsive to being found guilty, being found not guilty, or even being sentenced to prison. Many of my repeat Clients do not consider being sent to prison as something that will overly concern them, and therefore they show very little emotion if sentenced to prison. This particular Client explained that they had been so worried over this case that they had lost sleep and appeared to have genuinely suffered emotionally in the time it took the case to come to trial.

I was rather pleased to see that the result I had secured actually meant something to this Client. What was even better was the fact that the Client had thanked me for the work that I had undertaken on her behalf. Clients rarely say thank you.

Can't You Just Make It Up?

I spent most of my day today at my local Magistrates Court. I dealt with a variety of cases including one matter where my Client had previously pleaded guilty to driving without insurance and his case had been adjourned until today for him to argue that despite being a potential totter he should not be disqualified from driving due to 'exceptional hardship'.

Unfortunately this Client had only contacted my office yesterday and everything today was rushed as a result of there being very little time to prepare the case. My Client went in to the dock and during a series of preliminary questions asked by the Magistrates I had to keep asking the Client for the answers because of the lack of time that I had had with the Client prior to his case being called on. During these questions I was approaching my Client in the dock and asking him in a quiet voice the questions in order to get a response to give to the Court. My Client would then reply in an equally quiet voice that the Magistrates could not hear, and then I would pass that answer on to the Magistrates. When I asked my Client one particular question he responded, "Can't you just make it up?" I was somewhat surprised at this response. Many people will suggest that I am morally corrupt doing criminal defence work, but, one thing that I will not do is make up stories for my Clients. I replied, "No, tell the Court the truth." My Client then came up with the answer after some considerable thought.

The case continued for some time and after my Client had given evidence under oath the Magistrates announced that they were satisfied with My Client's evidence and despite imposing 6 penalty points on his driving record when he already had 6 penalty points they did not disqualify him from driving as a result of being a 'totter'.

After the hearing my Client commented that the private fee that he had paid my firm to represent him had been the best money he had ever spent. He then went on to say that he had now understood that to succeed in Court you needed to know what not to say rather than what to say. This was a fairly good observation to be made by a lay person, but he was correct. Advocacy is the art of persuasion, and usually the most persuasive argument is one that ensures nasty facts are not made known to the Court.

Re-re-balancing The Criminal Justice System

The BBC has reported that the Home Secretary is going to issue another consultation paper where he seeks to re-balance the Criminal Justice System again:

Judges could be stopped from freeing criminals on legal technicalities under government plans. Home Secretary John Reid, who says he wants to "rebalance criminal justice in favour of victims", will launch a consultation on how to achieve his aim.

The consultation paper states that it "should not be possible to quash" a conviction that is considered "safe".

The move follows a police crackdown on reckless or drunk drivers escaping conviction through legal "loopholes".

Writing in the foreword to the paper, Mr Reid said new laws would be required.

"Whilst the government is open to suggestions about how we achieve the aims, we are not consulting on the aims themselves or on whether the law should be changed," he said.

"It is our firm view that the present system risks outcomes which are unacceptable to the law-abiding majority."

Common examples of so-called loopholes include the police failing to properly read suspects their rights, or searching homes with out-of-date warrants.

The Home Office consultation paper states: "The government acknowledges that the Court of Appeal are not in the same position as the jury and may not always be able to form a view on whether the appellant committed the offence.

"However, where they have formed such a view the government believes they should not be empowered to allow the appeal."

To read the BBC article follow this link.

Is it me or does Dr. John Reid simply not understand the rule of law? We have over centuries developed a legal system that is designed to allow both the Prosecution and Defence to give evidence in Court to decide which side is correct - it seems to me that Dr. John Reid does not like the idea of a not guilty verdict! The conviction rate in this country is something like 97% in the Magistrates Court. What more does he want?

If he looking to prevent people having convictions quashed by the Court of Appeal on technicalities then he wasting his time - the Court of Appeal has said in many judgments over the past few years that technicalities will not prevent an otherwise safe conviction from being quashed.

Okay, rant over...

Drunken Solicitors

I stumbled across this piece written in the London Criminal Courts Solicitors Association publication, The Advocate, this evening and I thought that I would share it with the general public:

This piece was prompted by a letter of concern which I wrote to the Association following the Grosvenor House dinner. I have been attending the dinners for many years; my first memories are of its being at the Savoy. The Association was then very small (about 250 or so members); the original aim of the dinner was to provide an opportunity for London solicitors to entertain the stipes. Even as late as the seventies, solicitors (particularly those in crime), were thought to be a little below stairs, and this was a chance to raise their profile.

Over the years, the occasion has grown in size and has changed in other ways. In recent years it has come to be known as the “touts” ball. I never quite understood who was supposed to be doing the touting, but assumed the reference was to the Bar. However, as it is the solicitors who shell out quite generously to entertain the Bar at their tables, the jibe appears misdirected. Perhaps the label is one which is in fact applied by the disappointed barristers who don’t secure an invitation.

Of course, the other big change in the last couple of years has been that stipes are now not formally entertained at Grosvenor House by the Association. Sensibly, that evening has been moved to a biannual event, in the more intimate surroundings of the Savoy. However, many judges are still invited to the dinner by members.

The dinner, like LCCSA itself, has been a runaway success over the last few years. It is a landmark in the legal calendar, a great opportunity for firms to entertain their staff, their friends and colleagues at the Bar, and some judges. It is moving towards looking more like a ball than a legal dinner. Some of us are concerned by this drift but the truth is that it is popular and well attended, and therefore seems to suit the membership.

One thing, however, is not working well and that is the conduct at the tables during the keynote speech. The letter I wrote to the Association expressed my grave concern about the treatment of speakers. I am a long-standing friend and honorary member of the Association and I feel strongly that there should never again be a situation such as occurred this year. The Association invited Sir David Calvert-Smith to give the keynote address. He graciously agreed, and as a regular attender, he would have known what a challenge it is.

Anyone agreeing to make the speech is signing up to a great deal of thought, sweat and preparation and is generously giving that time and effort to the Association and its guests. Sir David has experience of every aspect of the legal landscape. He had prepared an important and interesting “state of the nation” address which deserved our undivided and respectful attention.

As those present will know, Sir David was subjected to a barrage of drunken noise; despite efforts to quieten the tables, a good proportion of those who were present continued to talk loudly among themselves while the speaker struggled through. The whole episode was unprofessional and highly embarrassing, and, in my view, did the Association a great deal of damage.

The problem is simply drink. It is quite clear that, by the end of the dinner, many in the room are beyond the point of being able to control themselves and are certainly in no condition to listen to a thoughtful legal speech.

Although this year was the worst I have encountered, the problem is not new and I believe has been ignored for too long. I have therefore urged the Association not to ask any more senior judges or lawyers to speak after this dinner.

What are the alternatives? We know that the “Gilly Gray” type of speech – a series of wonderful jokes and stories – will work, but Gilly Grays are few and far between. A professional paid speaker would offer a similar service and would “hold” a boozy audience, but this option would move so far from the legal dinner model that it may be defeating the entire object of the exercise.

I am told that in Holland speeches are made at the beginning of a dinner before the drinking begins; this would be novel and could work. Otherwise, it may be best to abandon the keynote speech altogether, have a short morale boosting speech from the current President, and leave it at that.

The decision is one for the committee, assisted by sensible representations from the membership. I know that the committee would value responses from members to this piece to enable its members to find a way to ensure that the success of the dinner continues but to guard against any possibility of the good name of the Association being brought into disrepute as a result of boorish behaviour.

– Stephen Dawson, district judge (magistrates’ courts)

Some of the comments made in this piece are entirely true. Solicitors do look forward to attending at this event, and some do get terribly drunk. But, this years speech was bloody awful. I was present at the event mentioned in the article and my table held a sweepstake to guess the length of the DPP's speech. I thought that my estimate of 18 minutes was pretty good, but if memory serves me right the speech went on for some 27 minutes. The speech did not deserve the heckling that it received from one drunken man who decided to shout, "Disclosure!", at inappropriate moments. By the end of the speech my table had lost interest in what the DPP was saying simply because he was talking for too long, in fact my table may have been one of the tables talking too loudly!

Ouch

A murder took place in my local area recently. The man charged with the murder had been arrested on a weekend day for a matter of domestic violence. He was then interviewed, he made full admissions, and then it was decided that it was appropriate to caution him for the assault and release him. The man then went home and killed his wife.

The reality is that whoever the unfortunate soul was within the Police who authorised this man to be cautioned cannot be criticised. I would imagine that if the man had been legally represented the solicitor would have pushed for a caution, and the Police would have probably been satisfied to give a caution provided that there had been no previous incidents of domestic violence and the man appeared to show some remorse.

Meet Vera Baird QC

I went to a meeting today in Cambridge to meet the Legal Aid Minister Vera Baird QC. The meeting was attended by about 40 to 50 other solicitors in order to discuss the Carter Report. The meeting consisted of the Minister and Derek Hill of the Legal Services Commission taking for about 30 minutes about the implementation of Carter, and then they answered questions for the next 90 minutes.

I had been looking forward to this meeting as I had a number of questions to put to the Minister. I was somewhat, selfishly, disappointed when most of the time was taken up by answering questions on the civil implications of Carter. When the subject turned to crime a local solicitor started to exaggerate the circumstances of waiting around at the Police Station claiming that he had been called to the Police Station four times in the past ten days and made to wait for three hours. I have no doubt that he did have to wait but not for three hours, four times, in the past ten days. This exaggeration detracted from the seriousness of the crime reforms, and the true impact they are going to have.

When I was able to get myself heard in the room I asked the Legal Aid Minister if any exceptions would be made to fixed fees for waiting in the Magistrates Courts allowing solicitors to claim for time wasted that was not their fault. During my exchange I was told that solicitors would have to alert the Department for Constitutional Affairs about delays caused by third parties so that the DCA could resolve the problems in the future in order to make fixed fee payments work. I replied by quoting examples of waiting that was caused by the fault of others, and then pointed out that a report produced by Professors Cape and Moorehead a few years ago alerted the legal world to the fact that waiting was a part of solicitors work and that the waiting was generally the fault of other parties. Unfortunately my exchange with the Minister broke down, she talked over me, and when I tried to talk over her she replied in a Question Time like manner, "Will you let me finish please." The verbal traffic was very one way in that I was talked at. Eventually the Legal Aid Minister decided that I was not being courteous enough as I was taking up too much of the question and answer session time. She made us all raise our hands and we had to wait to be selected before we put further questions to her, unfortunately she decided not to pick me for any further questions so I grew tired of trying to ask questions and put my hand down.

From this meeting I have gleaned that the basic principles of the Carter reforms are going to be brought in by the government. This was no big surprise. I have been told that if I object to the proposals then I need to put those objections in writing. Again this was no surprise. I intend to reply to the government consultations on Carter but if my written responses are treated anything like my verbal questions today I cannot see much notice being taken of my point of view. I simply hope that if more people voice their concerns the government will listen to a large number of voices.

More Tales From The Jury Room

Here is another contribution that I have been sent about jury deliberations:

The charge was section 18 wounding, arising from a road-rage incident. The defendant, who, if things had stopped rather earlier than they did, would probably have been in court as the complainant, admitted hitting the other chap - in what he said was self-defence - while he was holding his car keys. The way the complainant came to be slashed across the throat (fortunately not very deeply) was that, according to the defendant, the small lock-knife he kept attached to his key-ring had somehow sprung open during the fight, without his realising it, because the catch was loose.

As quite often happens, the judge had sent the jury home after the speeches the previous day and summed up first thing in the morning. The jury were then sent out and we were rather surprised to be called back into court 10 minutes later.

A problem had come to the judge's notice. He'd just heard from the court security guards that one of the jurors had set off the metal-detector when he arrived that morning. They'd discovered this was because he'd got two knives with him. Obviously, they told he couldn't take them in with him and confiscated them, despite his protests that he needed them because he and another juror wanted to demonstrate their colleagues what they thought might have happened in the fight.

The jury were dismissed because, as the judge said, they'd clearly been developing very speculative theories about the fight. It's fortunate, I suppose, that we avoided a situation in which the jury had to explain they couldn't reach a unanimous verdict because one of their number had just been taken to A&E.

Bail Pending Appeal

I recently represented a Client who pleaded guilty to an offence, due to the Client's previous convictions and the nature of the offence he had committed he was always at risk of being given a prison sentence. I explained to the Court the Clients personal circumstances and suggested if the Court considered taking action that was more serious that a conditional discharge then they should ask the Probation Service to prepare a pre-sentence report. The Magistrates retired and then came back in to Court saying that they wanted to deal with the case now and that they were thinking of imposing a sentence that could include prison.

It is not often that a bench of lay Magistrates will give an indication that they want to send someone to prison without first obtaining a presentence report. Unfortunately my client had previously been sent to prison, albeit a number of years ago, and I was therefore forced to deal with the case on the spot. I gave the Court full details of my Clients mitigation and the bench again retired.

During the time that the bench were out the Clerk of the Court asked if I was going to apply for bail pending appeal. It was strange of the Clerk to give the indication that she did as it meant that my Client was going to be sent to prison. I spoke with my Client and he said that if he was going to be given a prison sentence then he wanted to appeal against the sentence and apply for bail. I then drafted a notice of appeal and waited for the bench to come back.

The Magistrates decided to send my Client to prison. Once they had finished their pronouncement on sentence I stood up and explained that my Client was appealing against their sentence and I was applying for bail on his behalf pending an appeal being resolved at the Crown Court. The Magistrates listened to my bail application which was very simple: you have given a man a prison sentence when you have given his personal circumstances insufficient consideration. I basically told the Magistrates that they should give my Client bail because they were wrong to send him to prison. The Clerk of the Court explained to the bench that they should only grant bail pending an appeal in exceptional circumstances, this advice was spot on and correct.

The Magistrates retired and returned, and for some crazy reason they gave my Client bail pending his appeal. This means that despite deciding in the hearing that my Client deserved to go the prison they reversed their logic when granting bail.

I think that the logic in the decision was actually that the custody staff had gone home for the day and had the Court really wanted to send my Client to prison they would have asked him to wait whilst they arranged for a van to pick him up.

Destroy the Evidence

I overheard a colleague talking about one of his cases today, he told his Client that the prosecution against him had been discontinued because the prosecution had destroyed the principal evidence in his case.

The Client was being prosecuted for possession of a prohibited weapon, which for the sake of simplicity was a gun. The gun had not been used in a crime, it was discovered during a house search. Unfortunately the Client did not have a licence for the gun.

The Client was investigated by the Police and then prosecuted by the Crown Prosecution Service. The case was moved from the Magistrates Court to the Crown Court because it was so serious. Once the case was in the Crown Court someone decided it was appropriate to destroy the gun. Whoever decided to destroy the gun obviously had ultimate faith in the strength of the prosecution case but absolutely no regard for the rule of law.

From the outset of the case the defendant had told the Police that he did not possess a gun, and that he in fact had an air pistol. The Crown Prosecution Service were put on notice that the defence intended to get their own expert to examine the gun. I am mystified as to why the gun was destroyed. Someone from the prosecution clearly thought it was a good idea, maybe they have had second thoughts now?

Without allowing the defence to examine the gun the prosecution had shot themselves in the foot. No Court in the land would convict a defendant on the basis of evidence that could not be tested, particularly where the prosecution had been told that the defence had wanted to test the evidence from the outset.

Waiting For Means Testing

When I started working in the world of criminal defence work as a trainee solicitor in order to get legal aid you had to pass two tests, the first was the means test, the second test was the merits test.

Completing legal aid applications was a nightmare. First of all you needed to get the Client to the office, then you had to ensure that their criminal case was sufficiently serious to meet the merits test. The merits test has reamined very similar over the years, generally speaking if there is a real possibility that you could receive a prison sentence, or there was something complex or novel about the case then you met the test. The next stage was to fill out the form to meet the means test. This was always the part that was a nightmare. If a Client was on means tested benefits they had to provide evidence that they received that benefit. People on income support generally had benefit books and these could be photocopied. Client on job seekers allowance had to get letters confirming that they were actually being paid job seekers allowance. Clients who were working generally did not qualify for legal aid, but to complete an application you had to submit three months worth of wage slips. If the Client was self employed then they had to show their accounts for the past 6 months.

Means tested legal aid is coming back and will start with effect from 2nd October 2006.

I am not looking forward to means testing. The Legal Services Commission have already stated that they are willing to put in place an early cover system whereby solicitors can claim up to one hours work for representing Clients who have applied for legal aid within 2 days of being charged with an offence but who have failed the means test. This early cover system is then supposed to allow solicitors to claim for up to one hours worth of work on the case if legal aid is refused. Most defendants are not particularly clever, or organised, and I cannot see how most defendants are going to be able to supply the documents to prove their financial situation within two days of being charged at the Police Station and told that they are to be prosecuted. It is more likely that it will take them the best part of a week. In the days of means testing I recall case after case being adjourned because legal aid had not been properly sorted out due to financial circumstances/evidence.

The real worry I have about means testing is that it is all going to go horribly wrong. When there used to be means testing there would be about four weeks between the time a person was charged at the Police Station and the time they appeared in Court - by todays standards that time period has been reduced to about 1 week. There is going to be a lack of time to sort out the legal aid applications, and cases ae going to go before the Courts with Defendants saying my solicitor is not here because I have not got the papers to apply for legal aid yet. The Courts will slowly get bored of the argument that they should not deal without a Defendant's case because he has not sorted out his legal aid and then chaos will start as Defendants who are not represented will start to enter pleas without advice. You will get Defendants pleading not guilty to matters where they are guilty on their own account but think that the law is different and that they are in fact guilty. The reverse could also happen where people plead guilty to matters where they in fact have a defence.

I can foresee that there will be chaos. The savings that the Department for Constitutional Affairs believe that they will make by making Defendants who can pay for their own legal costs doing so will be wiped out by Courts becoming clogged up with Defendants who could be represented on legal aid funding but have failed to properly apply for legal aid.

Means testing is the wrong way to deal with funding. The Crown Courts operate a system whereby legal aid is granted to cases that are sufficiently serious, or complex, and if at the end of the case the Defendant is found guilty or has pleaded guilty the Court will assess the defendant's finances and then make a Recovery of Defence Costs Order and make those who can afford to pay pay for their legal aid costs. The Magistrates Courts should adopt this idea to prevent Defendants, Magistrates, and Solicitors getting tied up dealing with legal aid applications when they could be getting on with progressing the case.

Jury Service

Here is an amusing story that I was sent by e-mail last week:

My main reason for writing was to share with you this account of the exploits of a trainee criminal solicitor who was doing jury service with us this week (he'd already explained to court staff he was a trainee solicitor with a particular interest in crime). He was on a fraud trial in which the first jury had had to be discharged because one of the prosecution witnesses blurted out something very prejudicial about the defendant while giving evidence. The judge started the day, in the absence of the jury, by reading a letter he'd just received from this chap; the juror feared that much of the evidence was going over the heads of some of the other jurors and, to remedy this, he'd downloaded and made copies of various sections of two Theft Acts plus some Court of Appeal rulings that he thought would help the jury. He thought, though, that he should ask his honour's permission before distributing them to his colleagues.

'Ah,' said the defence barrister; 'may I ask your honour if this is the gentleman who has been sitting at the extreme left of the back row? [It was]. It's just that, yesterday evening, the defendant's relatives, who've been in court throughout, told me that that particular juror had had with him a book on criminal law throughout the trial and that, during lunch yesterday, they'd seen him sitting outside the pub round the corner apparently discussing what they assume to be the same book, which was open on the table, with four other jurors'.

The judge was very nice about it when he dismissed the jury, explaining that he was sure everyone had been acting from the best intentions but, unfortunately, he had little choice but to stop the trial.

As one of the barristers commented afterwards, clearly they hadn't yet reached the module on criminal procedure in this guy's course!

Credit For A Not Guilty Plea

There is a principle in criminal law that if you plead guilty at an early stage you will receive credit for your guilty plea. In real terms that means you are likely to receive less of a sentence if you plead guilty than you would if found guilty at the end of a trial.

The title of this post is credit for a not guilty plea because in recent weeks I have had cases where my Clients have been found guilty at trial but have then received a somewhat lenient sentence, and a sentence that is far more lenient than they would have received should they have pleaded guilty at the first hearing.

Trials can sometimes be odd in that going through the prosecution evidence and defence evidence the nature of the case is made known to the Magistrates Court and not just the bare facts and mitigation that would be presented during a sentence hearing.

There are, in my opinion, two reasons why sentences can be more lenient upon conviction after a trial. The first reason is because the Court hears fuller facts and has some sympathy for the Defendant. The second reason is because they want the case to come to an end and decide to impose a minimal penalty so that the Court can finally wash it's hands of the case instead of dragging the case out with another hearing.

Tales of Woe

Here are a few tales or woe about the contractors that move defendants from either Police Stations or Prisons to Court and back. The government decided in their wisdom to get contractors to move defendants instead of the Police or the Prison Service. There have been many problems with this system, such as when Group 4 took over the contract in London previously held by Securicor they did not have as many vans to transport defendants so defendants would routinely arrive late!

Here are a few of the best examples I have heard of recently:

1. A defendant is moved from HMP Nottingham to Harwich Magistrates Court. For some reason the custody staff contracted to work at Harwich Magistrates Court were not there. The van from Nottingham was operated by a different contractor. The staff on the van from Nottingham refused to take the defendant off of the van and in to the cells at Harwich because they were only contracted to bring the defendant to the door of the local Court and not to man the custody suite at Harwich. The result of this run in was the van was driven some distance to another Court to drop off the prisoner and prevent the two day trial from taking place.

2. At one of my local Police Stations they have decided to knock down the old custody suite and build a brand new one for the Police Station. The Police Station is physically less than 10 meters away from the local Magistrates Court. Having built the new Police Station custody suite people are now scratching their heads as to why a tunnel was not built between the Police Station custody suite and the Magistrates Court. In the future a firm will have to be contracted to move the defendants 10m from the Police Station to the Court and it will no doubt involve the use of a van!

3. When a particular contract was agreed for one Magistrates Court the people responsible for the decisions decided that in order to save money they would get a contractor to man one Court dock of the Court building instead of all three. As a consequence if the Magistrates make a decision to send someone to prison their case must be either already in Court One or moved to Court One of the building before a custodial sentence can be passed.

I did call these tales of woe, but they are in fact very real accounts. They might sound funny but they really are the truth.

District Judge Cooper

I have finally met the infamous District Judge Cooper who is referred to by criminal solicitors as 'Custody Cooper'.

I had the joy of going to Colchester Magistrates Court and watched this infamous District Judge in action. District Judge Cooper has a reputation for remanding people in custody where he either thinks that they are a bail risk despite the fact they are already on bail, or, that they need to consider their not guilty plea by being put in the Court cells for a few hours.

For various reasons I was waiting for my case to be dealt with so I had the opportunity of watching District Judge Cooper deal with the majority of a remand list. Some of the highlights included:

1. The three handed bail application. Three defendants appear in custody for a matter that can only be dealt with at the Crown Court. The defence solicitors all suggest that they want to apply for bail. The prosecutor objects to all three being granted bail. The first defendant applies for bail, and is refused. The second defendant applies for bail and is refused. The third defendant then withdraws his bail application knowing that he is going to be refused bail.

2. The bad character application that was reinstated. One case had been listed for the Crown Prosecution Service to make a bad character application for an impending trial. The Prosecutor stated that his colleague had decided to withdraw the application. District Judge Cooper expressed dismay. He then went through the defendant's previous convictions, he told the prosecutor that propensity had clearly been made, and that it was in the interests of the Magistrates who were going to deal with the trial to know about the bad character. He effectively co-erced the prosecutor to relist the matter for a further bad character application to take place.

3. The sentencing monologue. A defendant had appeared in custody on a Saturday morning and had been adjourned to be sentenced in front of District Judge Cooper for a matter of dangerous driving. The first comments to be made by District Judge Cooper when he saw the list of previous convictions for the defendant was, "Why has he not been sent to prison before?" and, "Why has he been given community penalty after community penalty that he has breached?" Despite the best efforts of the solicitor representing this particular defendant District Judge Cooper embarked on a sentencing monologue that lasted for several minutes where he criticised previous Courts for not imposing proper custodial sentences on the defendant. He then refused to sentence the defendant in the Magistrates Court and sent his case to the Crown Court to be sentenced.

District Judge Cooper is very entertaining to watch and if you are ever free on a Thursday morning he is well worth watching at Colchester Magistrates Court. The general public would probably applaud the comments he makes about defendants and approve of his methods. District Judge Cooper is very polite to defendants. It is amusing to think that he appears somewhat hard with defendants when he used to be a defence solicitor himself.

Carter

I have not posted much recently as I have been pretty busy and have had my head buried in the Carter Review. Lord Carter of Coles has published his report on the procurement of legal aid and has suggested some pretty far reaching reforms of how us criminal solicitors should be paid.

I am not going to dwell on the contents of the report but I do want to raise a few points. No doubt as time goes on I will bang on about Carter, but I will save you from my monologue at this stage.

Lord Carter wishes to change the way that criminal solicitors are paid. For Police Station work it is proposed that instead of being paid varying hourly rates for travel, waiting, attendance etc., that we should now receive a fixed fee for each Police Station case. That means for most cases a set fee will be paid, and that the fixed fee will only be increased if over 18 hours of work is undertaken. It is very, very, very rare for a Police Station case to involve more than 18 hours worth of work.

Currently the varying hourly rates guarantee that whilst doing work on a Police Station case the work is being paid for. Hours worked equal fees generated.

This fixed fee system will not pay for any travel or waiting. The fixed fee will cover work done at the Police Station in terms of consulting with Clients, being present during interview, and being present during identification procedures. So any travel incurred getting to the Police Station or waiting there will not be remunerated in any way.

That's great! Should I be phoned in the middle of the night to attend at the Police Station for an interview at 3 am the government will not pay for me traveling to the Police Station, or waiting there if there is any delay (even if the delay were to be caused by the Police).

The fixed fee system will pay for cases on a per case basis, and not a per visit basis. Also the fixed fee will pay the same amount no matter what the offence is, so the government would pay the same amount if the case was a serial murder or a simple shop theft.

My real gripe with this system is that it will take away any incentive to attend at the Police Station out of normal contracted office hours. Most criminal solicitors are paid a percentage of the fees generated out of hours. So, if I dealt with a Police Station case outside of office hours and the legal aid fees generated came to £400 I would get paid £200 in overtime and then be taxed on that.

Fixed fees present a problem in paying overtime. If the fixed fees are brought in my firm would get paid about £175 before VAT is added. As I am employed I have no need to be VAT registered and cannot claim VAT on top of my overtime. The firm would probably pay 50% of the fixed fee so I would receive about £85 before tax in overtime. I am a fairly energetic solicitor and I am quite happy to work through the night if it is my turn on the rota. There are slightly older members of the profession who would not think twice about ignoring a call for what would be something like £55 after tax.

This country has a network of solicitors that will attend at any given Police Station within 45 minutes of being called 24 hours a day, 7 days a week, 365 days a year including Christmas Day. Bring in fixed fees and you will destroy the incentives to work out of hours, and potentially destroy this network of solicitors available to work out of hours. Why would a solicitor want to risk going to the Police Station in the middle of the night for £55 when it could involve 4 to 5 hours worth of work (including travel and waiting). It puts it in to perspective to think that working for 5 hours through the night the rate of pay after tax is £11 an hour!