Diary of a Criminal Solicitor

Can I Complain Please?

2008-03-17T19:30:00.000Z

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

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

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

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

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

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

How Odd

2008-03-14T19:46:00.003Z

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

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

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

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

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

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

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

Dropped Cases

2008-03-11T09:26:00.003Z

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

More than 2,000 cases that should have gone to trial in the Crown Court were thrown out last year because they were not ready, a watchdog says today.
The cases involve serious offences including burglary, theft, assault occasioning actual bodily harm, possession of drugs and possession with intent
to supply drugs.
The inspectors of the Crown Prosecution Service (CPS) say today in their report on the performance of the service that even though this throw-out rate is better than it was, it remains poor. In total 2,325 cases were lost because prosecutors were not ready to proceed.
The cases come before magistrates, who decide if the cases should be sent to the Crown Court for trial. Under pressure not to grant repeated adjournments for prosecutors, magistrates are increasingly taking a tough line and discharging cases when papers are not ready, evidence not complete or witnesses not lined up.

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

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

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

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

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

Waste of Time

2008-03-11T09:12:00.003Z

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

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

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

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

Poor Advocates

2008-03-05T22:47:00.002Z

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

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

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

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

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

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

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

Free CPD

2008-03-02T23:39:00.002Z

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

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

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

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

Private Investigator

2008-01-05T22:54:00.000Z

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

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

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

Weird Stories in the Media

2007-11-28T21:57:00.000Z

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

The first news report was about a prisoner who decided to cut his penis off with a razor blade.

The second news report was about a defence that a Defendant ran at Court when prosecuted for various things including indecent exposure. His defence was that he had a very small and underdeveloped penis so therefore he would not go out in public flashing it about.

Christmas List

2007-11-25T16:36:00.000Z

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

A book that has been recommended to me is The Criminal Advocate's Survival Guide. This book has been recommended on the basis that it provides a light hearted look at the work I am involved in and provides helpful tips to improve an advocates skills.

I shall put both of these items on my Christmas list and see if anyone is kind enough to buy them for me.

Send Him Down

2007-11-22T00:27:00.000Z

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

The case was always going to be a difficult one to deal with as the offence was nasty, and sentencing guidelines suggest that for such an assault prison, or in this case youth detention, should be considered as the sentencing starting point. On the last Court hearing the Court had ordered that a pre-sentence report be prepared to assist the Court in sentencing my Client. The report produced was very positive and made particular reference to the fact that my Client had an excellent record of attendance and compliance with the Youth Offending Service when he had been sentenced for other matters.

I informed my Client before the Court hearing that if he got lucky he would not be sent to prison, and if the Youth Court adopted the standard sentencing guidelines he could expect at least a four month detention and training order (i.e. the youth equivalent of prison). The hearing went well, my mitigation came out as I had planned with the usual speech of, "He should be given one last chance before you consider sending him to prison." I could see that the Bench were nodding their heads at the right parts of my speech. Once I had finished addressing the Bench they turned their attention to my Client and asked him what he had to say about matters - thankfully my Client had the sense to say that he was sorry. The Bench then asked my Client's father what he wanted to say, unfortunately he said something like this, "Send him to prison, it is the only way he is going to learn". That was exactly the kind of parental comment that an advocate dreads.

My Client was lucky enough to avoid being sent to prison, despite the seriousness of the offence, and despite his father's unhelpful comments.

Would You Like A Bind Over for £50,000 Worth Of Criminal Damage?

2007-11-09T10:34:00.000Z

The Crown Prosecution Service web site gives guidance on bind overs:

If circumstances justify, a prosecutor may invite the court to consider exercising its power to bind a defendant over as an alternative to prosecution for a criminal offence. The prosecutor should only invite the court to exercise this power once he has made a firm and settled decision to offer no evidence in the criminal proceedings.
In some courts this proposal is treated as an invitation for the court to act of its own motion. In other courts it is treated as a complaint laid under S115 MCA.

If treated as a S115 MCA complaint (which can be written or usually oral) the court may wish to hear evidence or require some proof of complaint. It is therefore in such circumstances necessary to ensure that some admissible evidence sufficient to prove the complaint is available.

Prosecutors should never invite the court to bind over anybody other than the defendant.

Do you think that a bind over would be an appropriate way to deal with £50,000 worth of criminal damage? Probably not.

I had the joy of dealing with an odd case recently. A family left their home to go away on a holiday, they left behind their son who is a teenager. The son has a party one night, and the following night some people went to the same address and have their own party. At the party £50,000 worth of damage was caused to the property as the vast majority of the furniture in the property was smashed up and thrown around.

I represented a number of people accused of criminally damaging the property. The evidence in this case consisted of forensic evidence that established that a number of people were at the address, but unfortunately the Crown Prosecution Service had no evidence that any individual who could be placed at the scene had actually damaged anything - mere presence in this case was not enough to prove the crime.

The Crown Prosecution Service wasted thousands of pounds on this case. They attempted to have this case sent for trial in the Crown Court by initially charging the defendants with burglary and criminal damage. The Crown Prosecution Service accepted after a few weeks that the evidence in their case was weak as it relied upon one witness. That witness was a person who went to the 'party' and said words to the effect that, "I was there but I didn't do anything. I left before anyone damaged anything, and when I got back the place was a mess." The Crown Prosecution Service dropped the case and after several months revived the case with the same weak evidence.

This case got all the way to a trial where two weeks had been set aside for the trial. The Crown Prosecution Service had clearly been concerned about the weakness in their evidence and instructed a barrister with 25 years experience to prosecute their case. Surprise, surprise their main witness who said, "I was there but I didn't do anything. I left before anyone damaged anything, and when I got back the place was a mess," did not turn up to give evidence. It was clear that the witness for the prosecution had not told the truth and that vast sums of money had been wasted preparing and prosecuting this case. Although the started it came grinding to a halt when the prosecution requested a short adjournment to find their witness.

Once the prosecution confirmed that they would not be in a position to locate their witness they asked if all the defendants in the case would like a bind over. Although there was some reluctance to accept bind overs where some defendants denied committing a crime, all defendants saw the logic in accepting a bind over which is not considered to be the same as a criminal conviction, rather than run the risk of a Magistrates Court convicting the defendants on the basis of mere presence at the scene.

Appropriate Adults

2007-11-09T09:48:00.000Z

If a person under the age of 17 is arrested and detained at the Police Station they must have an appropriate adult attend at the Police Station to act as a parent or guardian to ensure they understand the Police procedures, and their rights and entitlements. I often come across appropriate adults when it comes to the interviewing young defendants.

Professional solicitors rules prevent me from acting in a dual capacity as a solicitor and an appropriate adult for a young suspect.

In my experience there are a number of different types of appropriate adults:

Inappropriate appropriate adults - these are usually parents who act very calmly before they get in to a private room with their child, but when in the room they let rip with either a torrent of abuse against their child for dragging them to the Police Station or even sometimes physical chastisement.
Co-defendant appropriate adults - there are occasions when parents go offending and they drag their child with them, and sometimes the Police arrest the child not knowing that the parent was in fact involved in the offence.
"Don't care" appropriate adults - in this category you often find that a parent has not attended but some close family relative or family friend. These appropriate adults are just at the Police Station for the purposes of being there and have no interest in the young suspect at all.
Vocal appropriate adults - these appropriate adults tend to take over the interview procedure. Although appropriate adults are told that they are not expected to sit merely as an observer in an interview the level of interruption caused by a vocal appropriate adult can sometimes get so much that the young suspect does not get a chance to properly answer questions because the appropriate adult keep interrupting.
Social worker appropriate adults - some young suspects that I deal with have their own social worker and on occasion these poor souls get dragged down to the Police Station to deal with their 'wards'. Nine times out of ten social workers are very good appropriate adults as they rarely disrupt the procedures unless they have a genuine concern for the young suspect.
Volunteer appropriate adults - this group of appropriate adults deserve some kind of reward for the thankless work they provide. Volunteer appropriate adults are not paid but give up their time to attend at Police Stations to assist young suspects who do not have an adult to call upon to help them out at the Police Station.

I recently dealt with a young suspect at the Police Station, and the whole case should have probably lasted one hour from the time I arrived until the time I left the Police Station, the delay in dealing with the case was down to the appropriate adult. I arrived at the Police Station and was given disclosure by the Police suggesting that a push bike had been stolen, that they had arrested a 'usual suspect' but he had denied the offence, and then my Client had walked through the door of the Police Station with a note from the 'usual suspects mother' saying that her son was innocent and that my Client would admit to the offence!

I discussed the matter with my Client and his father who had attended at the Police Station as the appropriate adult. The father fell in to the category of a vocal appropriate adult. Before I had a chance to discuss the offence I had been given my Client's life story with precise detail on his current schooling circumstances. My consultation was interrupted by the Police on at least three occasions because of the length of time it took. I eventually gave my advice, dealt with the interview and left the Police Station after three and a half hours. The father took a lot of convincing and felt that his son had a moral duty to admit to anything that he had done wrong - it took a long time to convince the father that with a lack of evidence his son's case would be dropped if he went "no comment" in the interview, and that it was probably for his sons best welfare that he did not go to Youth Court and start associating with young people who regularly commit crime and have no intention of changing their ways. On this occasion my efforts to convince the appropriate adult to act in a 'non-vocal' way reaped rewards for his son.

When I am told that a Police Station matter is ready to interview and an appropriate adult has been arranged I am always curious to see what kind of appropriate adult has attended.

Video Recording of Interviews

2007-11-07T22:09:00.000Z

This is an amusing video of a 'mock' Police video with a suspect:

The Police did trial video interviews a number of years ago to see whether playing a video of an interview at trial would have any impact on a Court or jury. When I used to work in North London there was a particular Police Station that was part of the Home Office pilot to test video interviews. The Police still have a code of practice governing how video interviews should be conducted, but, to my knowledge the Police rarely video interview suspects, if at all. The interviews that I dealt with that were video recorded were fairly useless - they consisted of drug addicts admitting to shoplifting matters, or youths denying being carried in stolen cars. I cannot recall a person being interviewed for a mildly serious offence. Each video would capture a view of the entire room, and a close up shot of the Client.

Most people assume that Police interviews are very exciting. They are not, they are usually very dull, unless you have either a very clever Police Officer of a very stupid Police Officer. The clever Police Officer will keep a solicitor on his toes by asking questions that are well thought out and are based on matters that have not really been disclosed in full before the interview started. The stupid Police Officer will ask repetitive questions that even the dimmest Client can answer with ease, or ask questions that are just so stupid that they become amusing. Over the past weekend I encountered a 'stupid' Police Officer:

Q: When you fell asleep how long were you asleep for?
A: I don't know. I was asleep.
Q: Did you look at the clock?
A: I fell asleep outside, there wasn't a clock.
Q: What happened when you were asleep?
A: I don't know as I was asleep.
Q: Were you aware of anything happening when you were asleep?
A: Jesus! I was asleep man! Why do you keep asking me questions about when I was asleep!?

I did watch a number of the video interviews that I had been present in. They were just as boring to watch as they were to be present in. I cannot see how anyone thought that these interviews would be good for a Court or jury to watch. I can understand the logic behind the idea of a Court or jury being able to see the reaction of a Defendant when answering a question, or how a Defendant answered a question in interview but the reality is that most defendants sit calmly in their interview and act rather calmly. It is rare for a defendant to do anything of note in interview such as say, "I'm bored of your questions, no comment," then pull their jumper over their head and say nothing more.

In the vast majority of cases the actual audio tapes of the interview are not played back to a Court anyway. The CPS will prepare a summary of what was said in the interview, that summary is served on the defence, and the defence agree the contents of the summary. When a case then goes to trial the summary of the interview is read by the Court so they do not have to sit through an entire interview from start to finish. In recent years I have not heard an interview tape played to a Court, and that is probably for several reasons:

Most interviews have to be edited because the interview contains details that the Court should not know about. For example the defendant may have been arrested for multiple offences but is only being put on trial for one offence, or the defendant mentions the facts that they have been arrested before implying that they have previous convictions.

Interviews can go on unnecessarily for a long time and it is easier to read an interview summary than hear the whole tape.

A trial can be heard in a shorter period of time if the bench can simply read the interview instead of having to hear it.

Video interviews of suspects in my opinion were useless and will continue to be useless.

DJ Cooper

2007-11-07T21:51:00.000Z

District Judge Cooper has been visiting my local Court this week. He is a famous character who has a 'street name' of Custody Cooper because of his unusual style of locking people up to get them to change their plea, or as a sentence. I have encountered Mr. Cooper in the past and have always found him to be a very pleasant man.

Today I appeared in front of District Judge Cooper representing a Client who was in custody, and had pleaded not guilty to an assault charge. When the Court case was called on after lunch Mr. Cooper strolled in to Court, sat down and said, "What's this all about then?" The Clerk explained that the Client had pleaded not guilty to an assault and that a trial was going to take place in a few weeks time. Mr. Cooper then said, "Does he really want to plead not guilty? Let's have a look at the papers." He was then passed the case summary from the prosecution and said to the Client, "Why have you hit this man? That's an awfully silly thing to do. You have been in custody for a week. Let's see if we can sort this out." Mr. Cooper then looked at the Client's previous convictions and said, "He is on a community order, he will never finish that will he? Does your Client really want to stay in custody until his trial date? He will probably get convicted." At this point Mr. Cooper was using his distinctive charm and style to get my Client to change his plea. I took the opportunity to seize the moment and asked Mr. Cooper what he would give my Client if he did change his plea - to my surprise Mr. Cooper suggested he would revoke my Client's existing sentences for community service and let him walk out of Court with a Home Detention Curfew Order (otherwise known as a tag). At this point my Client summonsed me over and said that he wanted to change his plea. After a brief discussion my Client stated he was more than happy to accept responsibility for the assault if he would be released immediately and that he would not have to continue with his community service.

The end result of the hearing was Mr. Cooper cracked the trial, the Client walked out of Court after regaining his liberty, and there were smiles all round. Personally I was happy that the Client had decided to change his plea because the evidence against him was overwhelming and very likely to result in a conviction had the matter gone to trial and the witnesses had attended.

Bangin'

2007-11-07T21:31:00.000Z

It is common practice for some prisoners to bang on their cell doors. It is unusual to spend any length of time in either a Police Station or Court cells and not to hear banging on the cell doors accompanied by some form of shouting.

About a week ago I went to a local Police Station and arrived about 4.00 pm. When I arrived there was a rather jolly chap who could be heard banging on his cell door with a certain rhythm. He would bang on the cell door twice and then shout, "Solicitor," then he would bang twice again and shout, "Cigarette," and he kept banging twice and shouting words such as, "Medication", "Food", "Inspector". It was quite clear from the tone of voice used by the detained person that he was not being aggressive but was eager to get some attention and have his various needs dealt with. I did enquire with the custody staff at the Police Station and they told me that the man had indeed had access to legal advice and that he simply would not accept the fact he had been refused bail and had to stay the night at the Police Station. I was at the Police Station for about 2 and a half hours and during this entire time the man in the cell continued with his banging. I left the Police Station and came back some three hours later and still the man was banging on the cell door in his rhythmic fashion.

Today I went to the cells of my local Court and it was rather busy. All of the cells were occupied and before I got in to the cells I could hear that someone was banging loudly on their cell door and shouting aggressively. When I got in to the cells I realised that it was three men who had all been sentenced to prison terms that day, and they were banging together to vent their frustration at being in custody. The difference between the man at the Police Station and the three men at Court was the man at the Police Station was pleasant with his banging whereas the three men were just objectionable - their style of banging and shouting simply annoyed those who could hear it.

I have never understood why people bang on their cell doors as it usually means that whoever is looking after that person, whether it be Police, or Court staff, immediately turn against the person and decide that if they are banging then they will be the last person to get any form of service. I have yet to see a person bang on his cell door and get what he wants.

If you do decide to bang on your cell door adopt the style of banging that the man at the Police Station did - it is far easier on the ear and is rather amusing, even when it is performed for several hours.

CJSSS

2007-11-05T19:38:00.000Z

CJSSS is an acronym for Criminal Justice Speedy Summary Justice. Last week my local Magistrates Court had its first hearings under the CJSSS banner. The theory behind CJSSS is that the whole criminal justice system in the Magistrates Court will suddenly speed up.

It is planned that when people plead guilty to offences that would normally require an adjournment for a pre-sentence report to be produced by the Probation Service of about three weeks that the report will simply be done on the same day that the person pleaded guilty. This is fine by me, provided that the reports will actually be produced and will be of some use to the Court. I am quite happy to deal with a case in one hearing rather than several. An example of how the system does not work is when an HGV driver appeared in Court, pleaded guilty to being three times over the drink drive limit when driving his HGV. The Court asked for a new style Fast Delivery Report from the Probation Service. The Probation Service did not have enough staff to prepare the report within a 'fast' period and the case simply got put in at the back of the Court list. The report did nothing more than confirm what the HGV driver said in his interview with the Police, it did not look at any background issues, and most importantly it made no reference to the underlying issue as to why the HGV driver was in Court - his alcohol problem. When the case came back in to Court the HGV driver was sent to prison for three months - why you may ask? Because is was obvious any person who was drink driving whilst in control of a large articulated lorry should be sent to prison for public policy reasons! The report should not have been asked for because it was obvious only custody would be imposed. The Probation Service were lacking suitable staff to complete the report anyway.

Another example of the failing system is that for the system to speed up all parties have got to move up a gear. In one case a solicitor could not advice his Client on the evidence because the main evidence was CCTV footage in a public order incident. The CPS had statements referring to the CCTV and presented their case on the basis of the CCTV - but the CCTV was not on the CPS file, it was still in the hands of the Police who had not provided it to the CPS! The Court did comment that they were well aware that the Police had been given substantial funding to provide CCTV at first hearings and told the Prosecutor to go across the road at lunchtime to collect the CCTV!

These might seem like small points but the real thrust of CJSSS is that you can get from the start of a case to the end of a case far quicker than you can currently. In my local area if you plead guilty and have a Magistrates Court trial it will take between four to six months for your case to be concluded. Under CJSSS it is expected that cases will be concluded between six to ten weeks from the first date of hearing. I am comfortably predicting that I will see a return to the bad old days when cases were listed for trial so quickly that there was insufficient time to deal with real legal issues such as disclosure. I am of the firm opinion that with fast trials the Police will not be in a position to deal with all of their evidential and disclosure duties and turn up to trials more regularly with new evidence that has not seen the light of day before.

The idea behind CJSSS is very good, cut delays and waste out of the system. Defence solicitors are usually fairly small organisations that can adapt well to change. Unfortunately organisations like the Police, Probation and Her Majesty's Court Service are unlikely to be in a position to adapt so fast even though CJSSS has been planned for many months.

It has been suggested to me that there is a different meaning to CJSSS - Criminal Justice Same Stupid Sh*t. I think that the person who came up with that definition has got it right.

Abuse

2007-01-22T00:04:00.000Z

Last week I received a leaflet from the London Criminal Courts Solicitors Association advertising one of it's new training courses. I probably receive one of these leaflets a week and usually I briefly look at the leaflet and throw it away. The only reason for me to actually read the leaflet that I received was because I had been told that I needed some training so I should attend the training course that this particular leaflet was advertising.

I was somewhat amused by the leaflet's description of the individual who was going to be speaking at the training seminar. I have set out below the exact text from the leaflet on the speaker (apart from his identity and the name of the firm he works for):

Mr. Solicitor is a solicitor at Solicitor & Partners and a regular lecturer for the LCCSA. The 2004 Chambers Guide to the Legal Profession described him having a "pedigree which stands out by itself". The 2005 edition as "tremendously bright", the 2006 edition as a "business crime legend" and the 2007 edition as having made a "massive academic contribution due to his involvement on the lecture circuit". Colleagues have described him as a 'complete wanker'.

I am pretty sure that the last sentence was not supposed to be published and circulated to every member of the London Criminal Courts Solicitors Association!

Marketing

2007-01-16T00:18:00.000Z

Marketing for criminal clients has always been a problem. Advertising to the general public about a firms criminal department never usually works as the people you are trying to reach often fail to respond to such adverts. Word of mouth is king, and reputations are very important.

If a person is arrested on a regular basis it is likely that they will have had contact with solicitors before - it is also likely that they will fit in to a stereotypical social group i.e. they have a low income and have some form of addiction (either drug or alcohol related). Trying to advertise services to this social group is pointless, particularly as they are usually going to be entitled to legal aid and therefore there is no price competition in the market. Word of mouth for these Clients works on this basis:

Mr. A: The Police want to arrest me, they came round to my house last night when I was out.
Mr. B: Who is your solicitor?
Mr. A: Joe Bloggs and Co. But last time I didn't get bail.
Mr. B: Nah, don't use them. My mate was arrested the other day and he got bail. Use Smith and Partners.
Mr. A: But I heard they work with the Police.
Mr. B: Really? Oh, use my solicitors then.

Clients rarely judge solicitors on a variety of performance factors, they usually judge whether or not they are going to get bail and whether or not they will be locked up for long. The more regular Clients will often build up a relationship with one particular firm or solicitor so that marketing criminal defence services becomes even more difficult.

The other night I was at a Police Station and I saw that a local firm was handing out key rings to it's criminal clients. The key rings had the firms name on it and the emergency contact telephone number. It is a simple idea, but unlikely to set the world on fire. I once worked for a firm that sent out key rings to Clients. The firm advertised that it worked in the area of 'public law' by proclaiming to have expertise in 'pubic law'. A few years ago a trend was set by firms creating plastic business cards that were effectively indestructible. These plastic cards were handed out to clients and they did not fall apart like business cards made from card - the only problem with plastic business cards was that the Police would take them away from Clients at the Police Station because some Clients would use the card to self harm and try to slit their own wrists! Imagine that, finding out that a Client had killed himself using your business card!

I sat discussing marketing ideas with a colleague today. We drew up a shortlist of marketing ideas that are unlikely to succeed, but are likely to prove popular in the short term:

Branded alcohol or cigarettes. The cause for getting in to trouble could be getting drunk. Everyone remembers what they were drinking before their memory fades, a branded bottle of drink would remind Clients to give you a call. Also every Client wants a cigarette at the Police Station, regardless of whether or not they smoke. Branded cigarettes would remind the Clients who to call when arrested.
Advertising space on Police Cell ceilings. What can you do when you have been arrested and placed in to a cell? Not a lot. Many Police Cells have the crime stoppers telephone number printed/sprayed on the ceiling. That ceiling is valuable advertising space. When a Client is detained at the Police Station 9 times out of 10 they will got to sleep and look at the ceiling.

Doomed

2007-01-09T23:05:00.000Z

I went to my local Magistrates Court today. A man was in the cells as it was alleged that he had breached his bail conditions. I spoke with the Prosecutor and obtained some papers on the case before going down to the cells to visit the man. When I spoke to the Serco Custody Staff I was told that the man had his own solicitor and that that firm of solicitors had asked if I could phone them. I was later instructed to act on their behalf.

I spoke with the man and asked him a few questions:

Q: It is alleged that you breached your bail because you had a condition not to sit in the front seat of a car, and you were arrested sitting in the front seat of a car?
A: [Low grumbling noise, then man lifts his head off of the interview room table] No! They is lying. I was standing outside the car. They is lying. I'm not havin' that. They is lying.
Q: So you disagree.
A: [Low grumbling noise, then man lifts his head off of the interview room table again] Yes, I want bail man. I 'aint stayin here again. I want bail.

We did not really get off to a good start, the man even sucked air through his front teeth - and that really gets on my nerves. After explaining that if the man wanted to contest the allegation of breach of bail he would have to go through a mini trial today and challenge the evidence of the Police he instructed me to tell the CPS Prosecutor that he did not accept the breach of bail. As this man had presented himself as being unpleasant and clearly thought that I was his skivvy I was happy to act upon his instructions that were doomed to result in failure. I warned the man that he was more likely to be given bail again if he were to accept the overwhelming evidence that he had breached his bail as the Prosecutor had already given me an indication that he would not ask for a remand in to custody if the breach of bail was accepted. Despite my warning I was again instructed to pursue the breach of bail hearing as the man's instructions were that he was not going to accept the alleged breach.

When the man's case was called on the evidence of the Police Officer who spoke with the Client whilst he was sat in the front seat of a car was read to the Court. The man gave oral evidence and disputed that he was ever sat in the front seats of the car. He looked at some still pictures taken from CCTV footage produced by the Prosecutor and simply sucked air through his teeth. It was a complete shambles. I used the phrase, "I am instructed to..." on a number of occasions to make it known that I thought the man's case had no merit but I was told by the man to make the application anyway. Eventually the Magistrates decided that the breach of bail had been proved and they then decided to remand the man in to custody.

Following the hearing I saw the man in the cells and explained why he had been remanded in to custody. He then asked if I would take his car keys and get someone to pick up his car as he did not want it to get clamped. I told the man that I was going to have nothing to do with his car and that his usual solicitors would see him very soon.

I left Court feeling somewhat smug that this man had failed to listen to me warn him that the evidence was overwhelming, and that as a consequence of his refusal to listen to me (and probably everybody who he came in to contact with) that he had remanded himself in to custody.

Utter Rubbish

2007-01-08T22:47:00.000Z

The Legal Services Commission has finally published an evaluation report of the Public Defender Service. The Public Defender Service was an experiment set up by the Legal Services Commission in 2000 to see what running a criminal defence practice was actually like. A number of annual reports have been published over the years about the Public Defender Service, and each report confirmed that the Public Defender Service is not an economically viable alternative to private solicitors firms doing criminal defence work under legal aid schemes.

A press release was issued by the Legal Services Commission to announce the publication of the final evaluation report:

The Public Defender Service (PDS) provides a better quality of service than private practice according to independent research published today. This finding is based on one of the largest and most detailed peer review evaluations of criminal defence services ever conducted.

In addition the research states that providing criminal advice services through an organisation directly employed by the state has no negative impact on the independence of the advice and representation provided to clients

The research was carried out by a team headed by Professors Lee Bridges of the University of Warwick and Avrom Sherr of the Institute of Advanced Legal Studies in London. It was based on an analysis of the PDS during its first three years of operation, from 2001 to 2004. It showed that during this start-up period, when the PDS was building up its caseload, it had higher costs than other criminal defence providers in the same areas.

The PDS annual report 2005/06 also published today shows that the service has become more efficient since the research was carried out. It also shows the most successful PDS offices are in areas such as Cheltenham with limited supply and can add value by filling gaps in the market.

Gaynor Ogden, Head of Employed Services at the Legal Services Commission said:

"I welcome the findings of the research which shows that Public Defender Service has become an example of a good quality criminal defence supplier and has a lot to offer the Legal Services Commission as a test bed of service delivery and a role in informing policy.

"The research report is based on data collected early in the life of the PDS and we have come a long way since then in terms of growth, quality and cost. We have introduced a new management structure which has bought focus to performance and we have introduced innovative methods of delivery including developing our in-house higher court advocates.

"We now have an opportunity to make firm plans about the future of the PDS and how we can best offer quality, value-for-money services to clients. We expect to make an announcement about the future shape of the PDS soon."

Legal Aid Minister, Vera Baird added:

"This research shows very clearly that the PDS is independent and gives robust advice: public defenders advise people not to speak in police station interviews more frequently than private solicitors; and more PDS defendants than private solicitor defendants enter early guilty pleas, yet the PDS has an equivalent client conviction rate, thus sparing their victims further trauma. Clearly the PDS has a future."

It is the comments in bold type that has inspired me to give this blog post the title 'Utter rubbish'. The PDS does not provide value for money, it is a vastly more expensive service to fund when compared to solicitors in private practice. My understanding is that the costs per case for the PDS is some three times higher than a solicitors firm in private practice. Yes, the PDS may have a future if it is going to provide services in areas where private solicitors have stopped providing criminal defence services because the income they generated by legal aid fees was so small. Yes, the PDS may provide a quality service to defendants - and that may well be down to the fact that they have fewer cases to deal with than solicitors firms in private practice.

The Public Defender Service was an expensive project funded by government money. The government is currently telling solicitors like me that the legal aid budget cannot accommodate any more increases and that we will all have to do the same (or more) work for less money in the future. The government is also trying to force upon solicitors smaller fees for work at the Police Station and Magistrates Court (this is a slight generalisation, but an accurate one) whilst it is suggesting the expensive PDS should continue to grow. The government is being somewhat hypocritical with the press release.

Wanted: For Crimes Against Common Sense

2007-01-05T22:34:00.000Z

The Daily Mail is a newspaper that publishes a lot of amusing stories. The articles are usually amusing for the content published or the viewpoint that the paper takes. The article with the headline, "Wanted: for crimes against common sense," caught my eye:

A Chief constable was accused of 'madness' last night after refusing to release pictures of two escaped murderers amid fears it might breach their human rights.

Derbyshire's top policeman David Coleman claimed the killers posed 'no risk' to locals, while the force said it had to consider the Human Rights Act and data protection laws when asked to publish 'wanted' photographs of the two men.

Mr Coleman's attitude towards murderers Jason Croft and Michael Nixon contrasts sharply with his ruthless crackdown on speeding drivers in recent years - including a 62-year-old who was jailed after being caught doing 38mph in a 30mph zone.

You can read the rest of this article by following this link.

Good Planning

2007-01-05T22:16:00.000Z

Here is a true story of how badly most Clients will plan their offending. Over the Christmas period a few people got together and dreamt up a scheme to make some fast money. You would think that if they actually put some thought in to it that the plan would be reasonable and that they would probably get away with the crime.

The crime that was planned was a robbery of a petrol station. The robbery was to be an inside job as one of the people making the plan was one of the employees of the petrol station. The appointed night came and the group of criminals made their way to the crime scene. The CCTV camera was moved so that it was looking at a wall, and not at the door of till area, by the petrol station employee. The other people involved in the crime came in to the petrol station and with the help of the employee emptied out the cash from the till - this should not have been caught on camera but unfortunately the CCTV camera had been pushed so that it's new viewpoint was looking at a mirrored/reflective surface that gave a very good view of what was going on at the till.

Before the criminals left the premises they decided to make the robbery look real and with the consent of the employee beat him up. Unfortunately some members of the public saw the employee being beaten up and called the Police.

As the 'robbers' were leaving the petrol station dressed in balaclavas the Police arrived in a car with the lights and siren going. The 'robbers' jumped in to their getaway car and started to drive away at speed. Unfortunately the view of the driver was obscured because his windscreen had steamed up and he simply could not see out of the balaclava as it kept slipping down his head. Eventually the 'robbers' crashed their vehicle and were arrested and detained by the Police.

Emmerdale

2006-11-08T22:37:00.000Z

My wife likes to watch Emmerdale on the television and from time to time, when I am not working late, I will sometimes see programmes like Emmerdale on the television.

I watched Emmerdale last night and got rather angry. I am not a good person to sit with when there is some kind of legal drama on the television as I shout out when they have got something wrong.

Last night I chuckled when I saw the Clerk of the Crown Court was wearing a wig like a barrister. Then I chuckled when I saw that the Prosecution barrister was wearing a solicitors robe and not one for Counsel. I then started shouting about the procedures and how the jury had not been sworn. I got angry when the rules of evidence were completely ignored.

My wife does not like watching legal dramas with me. She tells me to, "Be quiet," or from time to time after an outburst I get, "Oh, shut up!"

The Bill is one of the worst culprits for getting it wrong. I cannot recall ever seeing an episode where a defence solicitor was portrayed in a positive light.

Means Tested Legal Aid

2006-10-06T00:10:00.000+01:00

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?

2006-10-06T00:03:00.000+01:00

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.