I genuinely never thought that Grayling would agree to a cease fire. And a cease fire which effectively means that when it is up, he won’t be Lord Chancellor anymore.

He won’t be Lord Chancellor because either the ConDemNation will be over.

Or, he’ll have been promoted, I hear Head of Slytherin House is available.

Put down your weapons

You see, we’ve put our weapons down, but nobody has decided the terms of any treaty.

And of course, our main allies, the solicitors are divided, and don’t in truth have the same impact by withdrawing their labour.

Whenever there is a cease fire, people rejoice. But, of course, a cease fire is a temporary measure either before the resumption of war or the finalisation of peace. And whilst some of my colleagues rejoiced today, or were at least happy, I feel, ‘blah’.

I feel ‘blah’ in two respects:

1) What actually a year’s hiatus means

2) I wonder if we missed an opportunity

What a difference a year makes

As said, there’s the obvious likelihood that the Dark Lord Grayling is out of office. He doesn’t have to lose face with fighting the Bar, we don’t take the cuts for a year. Politically it’s a winner on both sides.

And for a number of people at the Criminal Bar it will mean maintaining the status quo. And that status quo will suit a large ‘middle’. The ‘middle’ of Chambers.

For those 11% of the Criminal Bar doing the top end, Very High Cost Cases, they of course find themselves worse off in a year’s time. Those cuts remain in place. However, many of that 11% will have significant income from private client work, part time Judicial Roles and let’s face it – the vast majority of that 11% practiced in the good days, when the Bar were paid by the hour.

As for the 89% of us who don’t do VHCC work. Well, it’s good for the squeezed middle. The classic, grad fee, solid criminal brief, s.18, shorter murders, rapes, is ok. They’re not going to be better off by next year, but, they’re going to have a decent living guaranteed until July 2015.

Thing is, that 89% isn’t all in the same boat. The junior juniors, i.e 5 years call and below, don’t have diaries full of 2 to 4 week sex/serious violence/complex acquisitive offending cases. Heaven forbid, up to about 3 years call (especially in London) you may well be sent back down the Mags on a legal aid brief, and that’s because your instructing solicitor is at the Crown Court doing the jury robbery trial which is the type of case that you rely on.

Magistrates’ Court fees are already next to nothing, what will they be now solicitors’ fees have been cut?

Those who have prison law practices, in advocacy, will find that adjudications are no longer financially viable, and the more complicated parole board hearings? They’ve been cut.

And solicitors’ fees across the board have been cut, if it means finding money elsewhere to keep afloat they will, and if that means keeping more work in house they will.

A year’s hiatus does nothing to deal with ‘plea-only’ advocates.

The one thing that surprised me the most was those ‘pupillage seekers’ on twitter who were rejoicing, it really is not good news for them at all.

And wasn’t there more to all this then protecting the squeezed middle

First, can I say, I am impressed. Impressed that the Criminal Bar mobilised, nationally to protect itself. And getting a truculent Minister to climb down is no small achievement.

But, as much as this whole exercise was about protecting ourselves, it was about protecting the system. That’s certainly why there were corners of the press on our side. Whilst GPs have looked greedy with a 1% pay rise, we’ve looked rather more noble in the face of a potential cut.

Of course, today’s victory will allow hundreds of Barristers to carry on practicing, who wouldn’t have otherwise. That in itself is a very good thing.

But…

The momentum was just starting to build. The first strike we did alone, then we got our instructing solicitors aboard, each strike was in the press. The third strike was looking good, two days, solicitors and combining with probation officers.

And too, other parts of the Bar were starting to come aboard too. Civil legal aid practitioners met to discuss steps toward solidarity, and the Family and PI Bar were starting to talk too.

That was exciting.

Today puts a halt to that momentum and makes some solicitors suspicious. The civil legal aid Bar is too small to have any great impact alone.

So we could have gone further, but if we had, if we have gone beyond protecting our place in the system, it would have been about protecting the system itself.

It would have also been about protecting our profession’s place in the system. Barristers can’t survive if they don’t reproduce. The thought that the only work that Barristers will do in the criminal court is privately paid driving cases and representing celebrities accused of sex offences is shameful.

Perhaps asking a large number of self-employed people, who do a lot of freebies, and greasing of the system’s wheels gratis, it is asking a lot to put things on the line to protect the system.

But, there’s a war still to be fought and that’s simple:

- When are you entitled to Legal Aid.

- And to what standard should you expect to be represented.

FTD

Excuse the geek factor for a moment, but when Keir Starmer was appointed DPP I was excited. Excited as I thought it meant a complete change in the country’s prosecution policy. Less resources would be wasted on hopeless trials, there’d be less criminalisation of protesters, there’d be more prosecutions around misfeasance and there would be less of a pursuit of ancillary orders like ASBOs, restraining orders, control orders etc…

What a huge disappointment.

I’m not sure what disappointed me more, his initial decision and subsequent weak looking flip-flop on the prosecution of PC Simon Harwood, or the painful waste of money that was the ‘Twitter Joke Trial’ and the three appeals thereafter…

Now, out of office, all we hear, is his name and then the word closely there associated is, ‘victim’. And, the second word closely associated to him is, ‘Labour’. And in this strange dance out of DPP’s offices and back to private practice, the message (being pumped by someone, I presume in One Brewer’s Green) is that Keir Starmer will be standing for election, as a Labour candidate and he is going to be a champion of victim’s rights.

On the face of it, the cynics will grin a bit, and mentally note how terribly populist it all seems. As someone with a, ‘rights’ based practice, I thought I’d read what appeared to be the flag ship document from Starmer on the subject, in the Guardian, in ‘Comment is Free’.

http://www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-system-victims-law-public-prosecutions

There’s the link…

… and read it a couple of times. I actually read it three times. And I genuinely wonder if he has written it. Not because of the contents but the lack thereof. The essential point you’ll have all gathered from it is, ‘we need a victim’s law’ – but then there is absolutely nothing in the article that says what should be in it, the comments below say it all:

“So – are you proposing the most major shift ever in UK law to move away from the adversarial system (in all types of cases, not just cases where sex and abuse is involved)?”

“What system would you suggest?

One without lawyers? Just draw straws – short and your guilty.”

“Having taken the trouble to set out what you see as major flaws in the handling of cases of alleged abuse, all you are able to suggest by way of remedy is a “Victims’ Law” the contents of which you make no attempt to describe and a rebranding of the criminal justice system to incorporate the already discredited bureaucratic platitude “service”.

These are serious issues. Can I suggest you come back when you have given the matter more thought.”

And it goes on… and on….

The whole article is two dimensional. It’s meaningless.

Once you get over the fact that he hasn’t suggested what will be in his ‘victim’s law’, you then move to his justification of it. Most of it seems to be based on the fact that a number of victims told the CPS to quite literally, ‘fuck off’ – Starmer does not blame this on the CPS or the police, instead he blames it on our judicial system, and in particular the adversarial system.

The truth about the adversarial system

It’s easy to blame the adversarial system. It’s easy because it’s the dramatic bit, it’s the bit, where somebody stands up and suggests to the witness they’re mistaken, or they’re telling lies. But very rare is it dramatic like it is on TV, quite often in fact, when we call stand up and call someone a liar, we do so, because we know so. How do we know, generally, a piece of physical evidence, CCTV, a neutral witness and so forth.

It’s not nice being called a liar.

It’s certainly not being nice being caught as a liar.

The reason the CPS were told to fuck off…

May well be because a particular witness was caught in a lie. Every criminal barrister can tell you at least 3 or 4 stories, where the CCTV of an incident (which of course the CPS have!) has completely gone against a witness and their version of events.

Of course, there are other times where witnesses and victims don’t want to give evidence. There’s nothing quite as horrible as seeing a woman being frog marched into Court by coppers to simply cry in the witness box for 20 minutes. That woman (or indeed man) may well have written three or four witness statements, they might all be different, a couple of them may even say they don’t support the proceedings.

It is so horribly nannying, to say we’re going to put victims at the centre of criminal justice but at the same time say they don’t have any right to choose. It irks me so. You either have an impersonal system where by the state is treated almost like the victim, or you have a personal system where it is almost as if the victim directs the prosecution. But if you have the latter you have to let the victim choose, not just presume it’s right for them and sally forth on a prosecution against their will.

Oh, and if you do decide you’re going to prosecute someone against a victim’s will, then at least have the dignity and respect to prosecute the right offence. Strangulation of a woman, throwing a woman down the stairs, breaking her bones, breaking the skin, making her bleed, is not a battery, it’s an offence triable on indictment with a commensurate sentence.

And when you prosecute an offence, could you have the decency to do as follows:

- Send a lawyer with an up to date practitioners’ text. The law has changed since 2009.

- Send a lawyer who has had the papers for more than 30 minutes before the trial starts.

- Send a lawyer who has a level of advocacy whereby at the very least they can compete with a second six pupil*

- It it’s in the Crown Court, pick a barrister and stick with them

- Don’t reduce them to a X or tick system

- Be certain to follow the barrister’s advice on charge and on evidence.

- Be courteous and actually reply to the police officer in charge’s emails

- Don’t lose evidence

- Don’t lose witnesses

- Don’t lose simple cases

(Can I return to the ‘*’ point for a minute. One of the big things to improve CPS advocacy was to send round lecterns for CPS advocates in all Magistrates’ Courts. Fundamentally that makes no difference. Can I say why the standard of a second six pupil is the minimum (( and it’s not solicitor v barrister)) – it’s this: a second six pupil has had the following training: a year in a classroom learning about and doing advocacy exercises, 6 months following around and watch a senior barrister and their advocacy, has completed a course run by senior barristers and Judges as to their advocacy. CPS lose cases because a lot of their lawyers are not advocates.).

Don’t take an obvious point

Labour are taking the obvious point that it’s tough for victims of violent and sexual crime to give evidence. I quite agree. But, a 2D, half arsed, ‘victim’s law’ is not the answer.

And it’s horribly transparent, and disappointing, that you’d use an ex DPP ‘from the other side’ to try and push the point. It looks desperate.

The Criminal Justice Act 2003, did all sorts of damage to the English justice system, it was not properly drafted and has taken 10 years to be litigated and re-litigated. Please do not vote for a ‘Victim’s Law’ – it’s hollow and crass. Vote for a political party that will take the CPS, and take them to task rather than blaming a perfectly good, world replicated, safety conscious adversarial system.

If you’re looking for a tempered, adult review of the new Injunction to Prevent Nuisance and Annoyance (IPNA), then please, check out this most excellent post on the Justice Gap by Penelope Gibbs

http://thejusticegap.com/2013/12/new-asbos-attack-civil-liberties-young/

However, if you’re looking for an irreverent, bordering on childish review of the IPNA, then do read on…

The ABSI – anti social behaviour injunction – is soon to be laid to rest. As is it’s famous brother the ASBO – the anti social behaviour order. And instead is to be replaced with a variety of exciting sounding orders, Community Protection Orders, CRASBOs, Public Spaces Protection Orders. The list is endless.

Ladies and gentlemen, you are going to be clad in protective orders when you leave your home.

And the best of these orders is the IPNA.

Ah yes, for no longer will you be caused nuisance or annoyed, and if you are? To the County Court, an injunction, and the threat of contempt of Court for those who dare break their IPNA.

What’s that I hear you say?

We’ve heard it all before

The ASBO was supposed to prevent people leaving their dog mess and children playing football on non-FA approved premises. But, it failed. Children are still seen on the streets. The elderly are asked to donate to charity by people wearing onesies. Just this very morning Mrs Jones from number 42 was asking for signatures on her petition about the leisure centre, again.

How will these fiends be stopped?

Never fear, Theresa May is here! They will be stopped with the IPNA.

You see, the ASBO, it’s too liberal. The most recent Labour Government (known for their mild stance on criminal justice and unswerving commitment to civil liberty) were too soft.

For an ASBO one had to prove that a person’s conduct was likely to cause ‘harassment, alarm of distress.’ Forget that, too difficult, too high a threshold. The coalition laugh at that puny test. The IPNA, it’s new, it’s streamlined, it’s easy to get an order.

Now! The test for the IPNA is:  is conduct “capable of causing nuisance or annoyance to any person”

Ah yes, we’re getting somewhere. Mrs Jones, you’re going to get served, you annoy me everyday with that damn leisure centre petition.

Also, big problem with ASBOS was the standard of proof. You see, you had to prove, to the criminal standard, i.e beyond reasonable doubt that someone had committed anti-social behaviour. Yawn. As an Oxford jury once said: ‘we’re sure there’s a doubt, we’re just deciding whether it’s a reasonable one.’ ASBOs required evidence to make the Court imposing it, ‘sure’ that a person committed ASB. It’s such a high threshold, and requires things like evidence.

Never fear! IPNA IS HERE. That boring, feisty old high standard of proof has gone. The coalition have brought is crashing down.

Low, low, thresholds of proof

Forget proving it beyond reasonable doubt, now, just on the balance of probabilities. Is it more likely than not that Mrs Jones annoys me? HELLO.Bang

And don’t you worry, all those pesky lawyers won’t get in the way. The coalition are taking IPNAs and planting them firmly in the County Court, no duty solicitor to cry to when you breach your IPNA, no no, you’re going to JAIL. No legal aid, no liberals are going to stop these. It will be Judges who decide who gets an order, proper ones too, no Magistrates messing things around.  (oh, apart from in the case of those under 18 – that goes to the Youth Court – weird huh – never mind. And appeal from the Youth Court is to the Crown Court – even weirder)

Bang and the dirt is gone

He’s making a list, he’s checking it twice, he’s going to decide arbitrarily who is naughty or nice

It’s actually, amazing, an annoyance free life. I’ve been reading the Bill, section 1, IPNAs can be made against anybody 10 or over. Not too shabby, that’ll get the kids playing football at the end of the street.

Now with all this good news, there has to be some bad. And that’s section 4 of the Act. You see, private individuals can’t apply for IPNAs. Shame huh?

It’s fabulous, the police will be able to get injunctions against those smelly protestors and the council against those dog walkers on the green.

And it’ll just be so easy. That’s the best thing.

But it’s still broad, all you’ve got to do is get someone to listen, local authority, housing authority, police, TFL, even the environment agency. Don’t worry, I’ll write to them all about Mrs Jones from number 42.

Get your shares in G4S now, we’re gunna need more prisons

In 2010, Theresa May complained that ASBOs didn’t work, in particular they put people (especially young people) on a ‘conveyor belt’ to prison. Looking at this Bill, it’s just a licence for two things: (1) local authorities to answer banal, low level complaints with complete overkill, (2)  the police to injunct/enjoin people from doing annoying but perfectly lawful things: i.e peaceful protest.

The net result is that your liberty is threatened again.

And when it is threatened it seems highly unlikely that there will be any legal aid there to provide for a lawyer.

Contact your MP now.

FTD

 

 

It’s now such a farce that one must feel sorry for the Met.

2013 has been an absolute kicking for the Metropolitan Police. #Plebgate is nothing compared to the Mark Duggan inquest. And, the Mark Duggan inquest is mild when one considers the admissions that Doreen Lawrence was the victim of a police led smear campaign.

At the same time, the Met’s PR department, sorry ‘communications’ department, has gone from 150 to 100 members of staff. Despite the disasters, one of their PRs was promoted to the head of PR for Surrey Police.

The crisis in police PR was such that  in October, Henry Porter described police corruption as ‘rife’ and Sir Bernard Hogan-Howe had to promise to be ‘ruthless’ in rooting it out.

Stories have filtered through the robing rooms that the public, in particular some juries, have not reacted well to police malpractice. One story filtered through shortly after the ‘Watson’ settlement (defence lawyer locked up unlawfully – not the Met of course), one jury was heard repeatedly to say that they wouldn’t believe a word the police said.

And that’s really the PR problem. At present it is only certain communities which really are entrenched when it comes to distrusting the police. But, the wider community have no tolerance for the Doreen Lawrence type scenario.

‘Us and them’ is fatal to any police force that seeks to police by consent. And any other model of policing would never be accepted in a liberal democracy.

It’s in the context, of all this that I was recently asked about my, ‘policy’ toward police instructions. Quite simple, I will defend an individual officer, I won’t defend the institution (i.e I won’t act for police forces.)

I understand that the upper tiers of the institution do not reflect the reality of what goes on at the grass-roots. And despite the positive noises, the public are starting to realise the same.

In 2013 I’ve had two very conflicting experiences of the same police force. One morning, my car was broken into along with two of my neighbours. I didn’t call the police, my neighbour did. Two response officers attended, they were polite, interested and respectful. Then a SOCO turned up, she was even better. And, then, the DC assigned the OIC was very good too. In my view, the best PR the Met can get.

Later in the year it was a rare foray back to the Mags’. I was defending a private client on a minor matter. Three officers attended, there was an air outside the Court straight away. Slouching, exasperated huffs, attempts at staring me out and the Defendant. (I point out, this wasn’t even an assault PC job or similar…). There was even a touch of childish whispering.

I’d been on the receiving end of this plenty of times before in the Mags (there’s rarely senior officers around or officers knocking about from specialist, ‘high respect’ squads as you find in the Crown Courts of London) and ignored it.

After the first witness gave evidence, there was a break, I walked outside, and instantly, I find one of the police witnesses talking to the witness. A full blown conversation. I couldn’t believe it. I told them to stop it, another officer, the OIC, made some remark I couldn’t hear, but was clearly full brush of attitude.

The officer who had spoken to the witness, got in Court, I put to him that he had been having a conversation with the civilian witness – ‘no, just told him I wasn’t allowed to speak to him’. I had been there, close enough, I knew that wasn’t true.

And when that officer lied, that to me had more of an impact than Plebgate, Duggan or Doreen Lawrence. That was an affront.

I know that we don’t live in a Capital city where all the police are bad. That’s why I will represent individual officers.

I am convinced that those 100 Eddie Monsoons would be better replaced. With 50 good coppers in professional standard and another 50 good coppers training up those who don’t meet Sir Bernard Hogan-Howe’s gold standard.

Sweetie, darling, where’s the squad car…. from absolutely fabulous, to absolutely warrantable, constitutional, legit…

I revisit my opening again, it’s such a farce one must actually feel sorry for those good officers in the Met. But, those officers, those good ones must help pick out the rotten apples too.

FTD

There’s a firm of solicitors in Southern England with a particular, peculiar, set of policies:  all of their clients go no comment in interview, all of their clients go not guilty at trial and all of those clients get the solicitor advocate (or employed barrister) they’re given.

The policy, albeit questionable, is profitable in the current system of criminal legal aid.

And we should never forget, that profitability is part of being a professional.  It’s never at the forefront of any of the legally aided professional’s mind but… it’s part of the reason people signed up.

Indeed, I’m the first to admit, I’m a scaredy (fat) cat. I love criminal practice, but, I never let my practice being 100 % criminal work. And of the criminal work I do, I never let 100% be funded by legal aid.

I am a wuss.

And I won’t be a hypocrite

The media are waking up to the fact that the top guns of criminal law are not going to be firing as loudly, accurately or dramatically in future.

Of course getting the column inches these days means getting the ‘comments section’ with it. And they’re interesting reading, when you put the stupidity and ignorance of some people aside, there are a couple of interesting points that the commenting public raise:

1) Merits

2) Rationing

It would be hypocritical of me to simply say they’re stupid points. Why, because I do it myself, I ration my professional time, to try and protect my cash flow and income stream.

Merits

Before people cry out: there is a merits test in the criminal legal aid process, let me clarify it. (Or at least how I think it works) In short, if you face imprisonment, there’s a sticky point of law/cross-examination, or you won’t be able to understand a court case then you merit legal aid (providing you meet the means test).

This  merits test seems to irk the general public. A lot of comments are directed at people having, ‘hopeless’ trials, or trials when they ‘know they are guilty.’

We’ll never be able to do anything about the latter, but what about the former. If I’ve said it once, I’ll say it a million times, clients can only be advised, they can never be forced into doing anything. And that equally applies to pleading not guilty, there’s been many a client who I think has a reasonable excuse/just cause/etc etc to plead not guilty who has pleaded guilty.

But what the public commentators say, is why should people be allowed to have ‘hopeless’ trials.

And in reality, it’s not a terrible point. The NHS does not carry out hopeless operations on people. And there are some hopeless trials, blatant CCTV, bizarre defences, non-existent alibis, every criminal practitioner has been there.

So why should we fund hopeless criminal trials?

In terms of other areas of legal aid, we won’t fund any old cause. For example, judicial review, in those cases Counsel has to justify why and how a claim will succeed before it is funded. Even once the High Court has granted permission (and thus indicated your claim has some merit) another advice still needs to be written to justify taking the claim further.

Many of these public commentators simply object to the waste of time and money that a hopeless trial takes. Let’s be honest too, there’s plenty of Judges too who say the same at the end of trials.

It would be cheaper to pay Counsel £250 everytime a case is sent to the Crown Court. And for that £250 that Counsel has to consider the evidence, having considered the evidence, Counsel indicates whether the Defendant has any chance of avoiding conviction. If so, the Defendant receives funding for an entire trial, if not, the Defendant simply has his representation paid for to get to a sentence hearing.

It would, quite probably save thousands of pounds.

But it’s not right.

In terms of principle, it doesn’t fit. It is an axiom of our society that the state must prove the citizen guilty before they can be punished. To support the principle of innocent until proven guilty, one must fund a Defendant through the entire process.

In terms of reality, it doesn’t fit. For every trial that read to be hopeless on the papers, it turned out for whatever reason that the Defendant was acquitted. The very point of a ‘trial’ is to push and prod the surface of the evidence and often when you dig down a little deeper you find things you don’t expect.

Rationing book

Criminal legal aid is of course rationed to a degree. You can’t get it for most traffic matters, nor can you get it for very minor charges. (Well… the idea is you can’t get it for minor matters but we all know the reality…)

Whether this degree of rationing is understood by the public at large? I’m not sure.

In any event, it’s not that type of rationing the public are after. Instead, it’s an idea that you’ve got a limited pot of legal aid in your lifetime. And once you’ve spent that pot, you’re out of luck.

Again, it’s an interesting idea which isn’t ridiculous. Some forms of NHS treatment one is only allowed to access a number of times. And, I’m pretty sure your state pension is partly calculated on how much national insurance you have put in over the years.

So…. there’s precedent, is there principle? One could, to an extent, base such a position on principle. The Criminal Justice system is based on a model of increasing intervention, minor offending one is conditionally discharged, more serious then community punishment, then imprisonment. Every sentence (bar financial penalties) has a rehabilitative aspect to it, in those circumstances, should we only give someone so many chances?

It’s difficult to answer I suppose.

The reality is one can’t ration access to justice. On the 11th occasion the Defendant will actually be innocent, will have been in the wrong place, or will have been fitted up and he will need a proper paid up defence.

Fez, I wear a fez now, fezzes are cool

Although I disagree with the public commentators on these various newspapers websites, they make me wonder.

People don’t necessarily object to our fees, nor to a Defendant being represented.

What they don’t like is a Defendant’s hand in the pot again and again, even when everything is stacked against him.

The flip side to that is in fact a desire from the public to deal with recidivists. The only way to deal with recidivists is to invest in them to break the cycle…. and who pays for that… well that’s a different story.

FTD

It would seem that there is a national need for a national police force. Whatever that need is, I have never really understood.

I personally don’t understand how we can have a new National Crime Agency without a Royal Commission on Policing or similar. Apparently, it’s more than rebranding SOCA, apparently it’s a new way we do national policing.

I’m sorry, it feels half arsed to me. In short, SOCA has been rebranded, CEOP (a good agency) has been subsumed and the troubled bits of the UKBA has been absorbed into the National Crime Agency.

And it’s clear that the Coalition have a brand in mind. They want the ‘NCA’ to be the British FBI. That’s clearly the brief which has been given to the media.

I pause at this stage and note, there’s nothing terribly ‘federal’ about the NCA. It’s got no powers to institute proceedings Scotland and only minor powers in Northern Ireland.

And really, call me a cynic, I imagine that bundling a number of agencies into one isn’t about a national revolution in the way that we are policed, but rather instead a cost cutting exercise packaged in a bit of media excitement.

If…

We are to have a national police force, then in reality there are a number of areas that NCA are missing.

NCA has effectively four sections:

- Border policing

- Economic crime

- CEOP (and the cyber crime unit)

- Organised crime

A remit much narrower than the FBI.

The fear

The hype of our own FBI is that nobody is out of its reach.

And in terms of the FBI, that’s very true. Small town corrupt police departments ought to fear the G men and the financier with a proclivity to misselling financial products to little old ladies ought to have the same.

The FBI has eight top investigative priorities:

At number 5

Protect civil rights. If you’re a state official in the United States who misuses their power, who curtails the rights of the good folk of whatever county, then (nowadays at least – forget COINTELPRO for a mo) they ought to expect a knock on the door from a university educated law enforcement official.

If a Washington Police Dept had illegally followed, slurred and surveilled a murder victim’s family, they don’t have an ombudsman knock on their door, they have the FBI.

At number 7

Combat major white collar crime. We’ve seen the images of the likes of Bernie Madoff taken down by the FBI (and technically also I’m told the US Postal Service!).

In the UK we see nothing like it. The major white collar crime, when committed by an individual is investigated by a variety of folk, the City of London Police, the Met, the SFO and so on and so on.

Behind closed doors we don’t see the non-prosecution arrangements reached with companies or their agreements to pay fines.

If we were serious about a national police force to have a serious economic crime aspect, then those agencies ought to have been subsumed too. But let’s face it, there’s no drive in this government to really tackle crime in the City.

All publicity no panther

Was it a panther, or was it a bear that was the logo of SOCA? I have forgetten already.

If this new agency is to have any claws then charge it with protecting civil liberties and fighting big corruption. Otherwise it’s just a load of money on new logos.

FTD.

I’m sure St Basil’s Cathedral is beautiful and that borsch grows on you, but, I don’t want to live in Russia. Nor do I want to live in Zimbabwe, North Korea, Iran or any other country that doesn’t recognise basic human rights.

I’m not asking for much: I want to live in a country where I can express myself freely without the risk of arrest, where I can practice my religion (or lack thereof), where I can live freely without unlawful interference of my property or person by the State, where I won’t be locked up without due process.

Theresa May said yesterday that the next Conservative Manifesto would promise to repeal the Human Rights Act.

As an aside, the Human Rights Act doesn’t actually give anybody any new rights. What it simply does is incorporate the European Convention on Human Rights directly into English law. I.e, you can enforce one of your ECHR rights in an English Court of any level, rather than having to go to every English Court and then go to Strasbourg. If you didn’t know, you have had ECHR rights since the 1950s, they were thought to be essential by great men and women: Churchill. Being a signatory to the Convention is a necessary condition before a nation is able to ascend to EU membership.

The ECHR is simple enough, google it, simple things like the right to life, the right to a fair trial. Things that you want, that you expect.

Let’s be honest, Theresa May isn’t saying that she doesn’t want you to have those rights. She’s keen to express herself and live freely without the risk of arbitrary arrest.

No, the truth is, that a poisonous section of our society do not like the universal aspect of human rights.

And that varies in degree:

Why should prisoners have rights? They committed crimes, they’ve been taken out of society.

Why should asylum seekers have rights? They aren’t in their home country, they’re guests in somebody elses.

Why should the unemployed have rights? They aren’t contributing economically to society, why should they be protected by it.

Uncomfortable yet? My skin is crawling.

What about disabled people with genetic conditions. Should they have the unfettered right to reproduce?

Or, what about the mentally ill? Or children?

Now I’m feeling a little sick.

The haves and have nots

Repeal the Human Rights Act, in reality we’re all have nots. Not being able to directly enforce one’s Convention rights in domestic Courts is not a positive thing. Nor, in reality to any of us benefit from the legal situation of suddenly extracting those rights from the system, especially when 10 years of common law decisions are based on the Convention having direct effect. Legal uncertainty is not a good thing, especially when it concerns the rights of the individual.

The citizens and the slaves

Those with a historic inclination would be probably say that the Magna Carta is the first real human rights document, and hoorah, it’s British. But, there is a simpler, much earlier document:

When Cyrus the Great conquered Babylon he freed all of the city’s slaves. He declared that all races were equal and that one was free to choose one’s own religion. That was in 539 BC.

My view is simple. There is a minimum standard that everyone deserves. If you decide that certain people don’t deserve that minimum standard then they are little more than slaves.

If you argue that not everyone deserves human rights, then be sure never to visit a country where human rights aren’t universal, as you may find yourself in that minority without protection.

FTD

From a pub in legal London:

‘Why do the police behave better in the Crown Court?’

Puzzled faces.

‘Cos the Magistrates let them get away with anything’

Everyone laughs.

‘May as well still be the Police Courts’

More knowing laughter.

Growing up

There’s a generation of the junior bar who miss one Magistrates’ Court in particular: Bracknell. In reality Bracknell Magistrates was manned by 3 or 4 London Barristers’ Chambers and a couple of big firms of solicitors. It was a pleasure to appear in.

Yes you’d sit on a train for 50 minutes with no loo or refreshment cart.

Yes if you missed the train you’d be hours late.

Yes you had to have lunch at Burger King or Greggs.

But! It was a wonderful magical place – why? Well, the legal advisors, virtually all had been practitioners at some stage and all were fair. And the Magistrates, consider now that this is in the heart of Berkshire, were diverse in both race and gender. They even had some younger JPs. They thought about cases carefully and gave comprehensive reasons for their decisions. They were polite too…

I’ve only ever had one credibility finding made by a Court against a police officer (this means following the case of Guney that it would be disclosed to the defence in every future case that the police officer has told lies whilst under oath) and that was in Bracknell Magistrates Court.

Bracknell was, in my view, a high quality mark.

But there were other extremes, in X Court you knew you would be acquitted, in Y Court you knew you would be convicted, in Z Court you knew your client was going to prison. You ought to be assessing the outcome of a case on the basis of the evidence not the Court.

Learning from mistakes

The closure of Bracknell was absolutely stupid. The Benches have now been split up and mixed up. The Bar assumed that similar closures in London might even things out across London at least, but now things are less predictable.

In honesty I don’t really go very often anymore, but still, people more junior tell you things, or a pupil will call and ask you a question.

The friction between the Bar and the (Magistrates’) Bench is twofold:

1) The way in which barristers are trained. The problem is this, the average barrister goes off for 6 months to the Old Bailey, Southwark, the Court of Appeal, with their, established and respected master who might be as much as 30 years call. They then crash down to the shop floor in the Magistrates and it is a culture shock. It encourages some baby barristers to be arrogant, it turns some into complete cynics who don’t run trials as they believe Magistrates just convict  and some just lose their confidence because of the way in which they’re spoken to and treated.

2) The bizarre. If juries gave their reasons for verdicts then I have no doubt that the doors of the Court of Appeal would never close. But, sometimes, you simply cannot believe what you hear in a Magistrates’ Court:

I give you three personal examples:

a) About 18 months ago, my client didn’t turn up to Court for trial. The Prosecution applied to proceed in absence, I opposed the application. The Bench announced that they proceeded in the Defendant’s absence and found him guilty. This was before they had heard any evidence. Needless to say that conviction didn’t last long.

b) It may harm your defence, if you don’t mention something which you later rely on in Court. 2 years ago, my client was asked a multitude of questions in interview, he answer no comment to a couple of them. When it came to trial, the prosecution didn’t ask the same questions, the Defendant didn’t mention something in trial he hadn’t mentioned previously. The Magistrates came back and found the Defendant guilty. Part of the reason they found him guilty was the Defendant answered no comment to two questions in interview. The Prosecutor and I looked at the legal advisor who didn’t see the problem. I explained the problem, the chair of the Bench was absolutely mortified. Legal advisor told them that his boss had advised that the Defendant would need to appeal to the Crown Court / High Court. The Legal Advisor had read the reasons before they were announced….

c) Credible and consistent. Where this phrase has come from, I do not know. If I find who came up with this phrase I am going to tell them what I think. The worst example of this I had was back toward the start of my career. A youth client was convicted, the reason: ‘The prosecution witnesses have attended this court and been cross-examined so we find them credible and consistent. We did not believe your evidence and so we find you guilty’ – Sorry what?

But I’m not an abolitionist

Actually, if you look at those examples, all three are actually legal errors:

a) Due process/ burden of proof

b) Adverse inference/right to silence

c) Burden and standard of proof / adequacy of reasons.

Magistrates are not legally trained, who is, their legal advisors. If legal advisors are not robust about properly directing Magistrates as to the law then one can hardly blame the Magistrates for the flawed decision.

So what happens if the Crown Court, or the High Court quash a Magistrates’ Court decision on a matter of law? Nothing. The Magistrates are liable for costs if they divert from the Legal Advisor’s advice.

What if the Legal Advisor gives the Magistrates the wrong advice/no advice? Nothing.

Who quality assures Legal Advisors? Other Legal Advisors….

So actually, the first step is to take better quality control of the work  done by legal advisors.

And don’t give in to the argument that we should do away with Magistrates because they are not legally trained. There are plenty of cases where I would always opt for Magistrates over a District Judge – why – because a person is much more likely to get a fair trial from his peers,

Unfairness and the many forms thereof

In a lot of courts, familiarity is the first unfairness, Benches have seen and heard particular prosecutors every day for a number of years, there’s of course a relationship there which amounts to a potential unfairness. To ameliorate that, rotate the prosecutors.

The police court? I certainly don’t think every Magistrate has bias towards the police, far from it. However, again, culturally, there were always certain Courts where one could confidently raise police misconduct issues and others where one couldn’t. That’s probably a training and recruitment issue for the Magistracy.

Diversity. Less than 8% of Magistrates are BME. However, more than 8% of Defendants are from ethnic minorities. And, age! The average age of a magistrate is 57. Over 80% are over 50. It’s again a recipe for unfairness.

Familiarity/Training/Diversity: all of those matters, again, are really a matter for the MoJ to sort out.

What does that leave us with…

A very small minority simply misbehave, that’s really something to do with recruitment and proper scrutiny. I have witnessed comments over the years that make ‘predator’ sound minimal.

“found that he demonstrated an inability to take a dispassionate view of a case.”

“was subject to an investigation following the expression of her personal views whilst sentencing in court and subsequently repeated in a media interview. The investigation found the views expressed in court were inappropriate.”

“made inappropriate comments towards fellow magistrates.”

These are just a few examples of investigative findings from the Office for Judicial Complaints in the law few months against Magistrates. Clearly,  the legal profession and court staff must be encouraged to take this avenue when Magistrates act improperly. As far as I can tell, the legal professions, nor court staff have never been invited to use the Office for Judicial Complaints at all.

Great expectations

The Magistrates are an ancient institution. And one I’m not keen to get rid of. The JP suffix after their names gives a certain degree of respect. But it doesn’t make the Magistracy as a whole respected.

And the present Government has great expectations for the Magistracy, they want them to do more, they want more Defendants to opt to be tried by them.

Simply put, confidence in the Magistracy isn’t going to be improved by simply policing them better. (Although it must be said, quickly dealing with inappropriate behaviour and encouraging it to be reported is important).

Instead, to meet the great expectations the Government has there needs to be:

(a) A more diverse Bench and less of a ‘local Court for local people’ type of outlook (where possible).

(b) More scrutiny of the advice being given by Legal Advisors.

(c) Better training of Magistrates

FTD

I’ve never been a good spectator and I’ve never been a great athlete, the result is that I’m not the biggest fan of ‘sport’. Don’t get me wrong, I like international football and watch rugby and cricket, I’ll even throw a rugby ball about, or knock a few tennis balls about, but for me, that’s the extent of its impact on my life.

For some people, sport is much more important – fine, each to their own.

But I have to be honest, ‘sport’ and I use that big term, is annoying me at the moment. Not individual sports, but sport.

Sport is annoying me because it wants so much, but not really any responsibility.

Funding sport

Again, that big term, ‘sport’. And in this Country we have Sport England. Sport England have two roles, (1) they act a sort of statutory guardian for England’s playing fields, (2) they hand out money.

The money handed out, is not only money from the lottery, it is also money from the taxpayer. And, I don’t worry about it, sport is good for the economic well being of the nation and its physical health.

Great.

If you’ve got my money

Then, I object to it being spent to send athletes to a country where gay people are marginalised and brutalised.

After the Prime Minister has indicated that there will be no general boycott of the Russian Winter Olympics in Sochi, supported by Lord Coe.

Lord Coe who apparently said of boycotts: “They only damage one group of people and that is the athletes,”

The Winter Olympics give prominence, economic benefit and prestige to any country that hosts them. I do not believe that we, as a country, should financially support athletes who wish to participate in those games. Participation in those games is a form of endorsement of Russia.

My taxes ought not be spent endorsing homophobia.

The idea

is that sport and Government, or sport and society are somehow separate. That is why FIFA have got away for so long with allowing racism in football. It’s rubbish.

If sport wants Government money then it ought to stick by Government policy. And one would hope that Government policy is not: homophobia is fine. Rather instead, that we ought to strive for all forms of equality.

Sport has to start playing by the rules.

FTD

For want of prosecution

Posted: 24/06/2013 in Barrister, Uncategorized
Tags:

Contrary to popular belief, criminal defence lawyers do not have an arsenal of ‘tricks of the trade’ at their fingertips which allow them to take advantage of ‘loopholes’. The famed, ‘technicality’, is a rarity.

To stop a trial before you set sail takes a lot to do. One of the great joys in my career has been arguing that a criminal trial would be so unfair that the Court ought not hear it. I’ve won a few of those arguments, almost always because of police misconduct or missing evidence.

These are called abuse of process arguments. A lot of time is spent at Bar School teaching people about such arguments, a lot of time spent by barristers and solicitors debating such arguments and often large parts of the Court 2 and 3 list at the Royal Courts of Justice debating them on appeal.

One thing you don’t spend a lot of time learning about is another way of stopping a trial: having it dismissed for want of prosecutor.

The presumption these days

It is presumed these days that  if a Defendant does not turn up for her trial that it will go on without her. And what you’re taught at Bar School (albeit for five minutes on a Friday afternoon after you’ve been in the pub at lunch) is that if a prosecutor does not turn up to do your trial, then one apply for a case to be dismissed for want of prosecution.

The law can be put quickly enough: The leading case is R (on the application of CPS) v Portsmouth Crown Court 23. The reasoning in Portsmouth can be summarised as such: if the Prosecutor/Respondent fails to attend, the Court should not simply dismiss the charge/ allow the appeal, (a) without making vigorous enquiries as to the Prosecutor/Respondent’s whereabouts, and (b) if having made those enquiries it turns out that there is a prosecutor en route and the case is ready to be presented.

Indeed, in Portsmouth the earlier case of the Hendon Justices [1967] 1 QB 167 was noted, in particular at 174C, Mann LJ, giving the judgment of the court, said:

“However, the duty of the court is to hear informations which are properly
before it. The prosecution has a right to be heard and there is a public
interest that, save in exceptional circumstances, it should be heard. A
court’s irritation at the absence of a prosecutor at the appointed time is
understandable. That said, it can seldom be reasonable to exercise the power.

So, no prosecutor, no reason,  no chance of starting the trial, then it is possible to apply to have the case dismissed.

Time to mark that page

An application to dismiss a case for want of prosecution is a rare thing. Thus why such little time is spent teaching it and it is rare that a lawyer will have the law in this regard at their fingerprints.

But, it would seem that times are changing. In the last two weeks, I have been turning up the law twice.

On the first occassion, I was doing a two day appeal in the Crown Court, nobody arrived to respond to the appeal. After three hours waiting and what was estimated at the Judge as being £5000 worth of wasted costs, the appeal was adjourned.

Today, three barristers, waited to start three different trials. No prosecutor arrived until lunch time and no reason was given why.

It’s all a game

Quite often people say to me, ‘oh I suppose it’s all a game to you’. To an extent part of the joy of being an advocate is persuading a Court to your position and gaining success for your client.

Abuse of process arguments are an art form in that regard.

But, this is no art at all. This is running from one end of the pitch and depositing the ball in the Prosecution’s net.

It does nothing for the reputation of our justice system at all, it makes it look weak and ineffectual.

It must too be taken as an alarm signal that the CPS is on the verge of collapse.

But, defence lawyers and the Judiciary should consider making and granting applications to dismiss prosecutions for want of prosecutor. Without such applications the problem will simply remain a collection of comments on a cracked trial form.

FTD