Brian…in need of a #legalaidhero

Let me introduce you to Brian…

Brian is 6’4″ tall, weighs 22 stone, shaves his head and has tattoos covering about two-thirds of his body. Brian suffers from a number of physical difficulties including epilepsy and has been categorised as having a borderline personality disorder and takes a cocktail of medication each day.

He speaks slowly and has a broad West Country accent. First impressions on meeting Brian are rarely positive. Physically he is intimidating and his speech and mannerisms often give the impression that he is slow to comprehend things.

As a result the contact he has had with authority figures whether that be police, doctors, social services or courts rarely go smoothly. People treat him as being stupid, and he becomes frustrated, voices are raised and one thing leads to another, usually badly for Brian. Brian is certainly not stupid, just unable to communicate very well.

Three years ago Brian met Sheila. Sheila was the love of his life, his first girlfriend. For ten months Brian spent all his time with and all his money on Sheila; flowers, chocolates, fancy meals, clothes, jewellery and a myriad of other gifts. All was well with his life.

At the end of ten months Sheila left Brian and there was no reason given, no real explanation, she just stopped answering his calls, texts were not responded to and her Mum told him she was never in. Brian became depressed, his medication was upped and over time he found a level to build from.

Then two months later Sheila contacted him again.

A text, would he meet her, she wanted to talk.

Delighted, he met her in their café and she told him she was pregnant. Not for a minute did he question whether he was the father. In his head he straight away made plans about what the baby would need, where they could go and what he would do with her. Sheila made it clear that she didn’t want him to have any involvement at all, he could provide for the baby and that was that. Nothing Brian could say would change her mind.

Resigned to the fact he may never see his child he nevertheless started buying clothes, toys and other essentials from his Disability Living Allowance. He opened an account and put £10 a week into it, “For when she was 18 and needed a car”.

Six months later, Hazel was born.

Brian was not present at the birth and was only told he had a daughter two weeks after the actual birth by way of a text message. Brian immediately went to see Sheila but she wouldn’t see him. He didn’t see Hazel but was sent a blurry picture to his mobile phone.

At that point someone told Brian that he was entitled to see his daughter, he had rights.

There then started eight months of assessments; court, doctors and social workers and various distressing court hearings where Brian’s life was dissected.

You see, not only did Brian have various medical issues he had a caution when he was 17, for sexual assault. He had kissed a girl, a fifteen year old, who he thought was his best friend. She told her Mum, she told the police and he was arrested. The circumstances were not in dispute but it meant Brian was a potential risk to a child, even his own.

Finally the court ordered that Brian be allowed three two hour contact sessions a week, supervised and in a child friendly environment.

For three months all went well. Brian had his contact and he thrived from it. He had a new tattoo on his arm proudly proclaiming his daughters name and date of birth. He was in his own words, “as happy as I had ever been”.

Then, through no fault of his own his benefits money changed and he had less to live on. Some weeks he could not afford to pay the maintenance he had been paying to Sheila.

Suddenly Hazel was ill, she was away, she was asleep and so he was no longer having his contact. She wasn’t, they were all just excuses made up by Sheila. For a while Brian accepted these reasons and did not make a fuss. As the days went by his frustration increased, calls were made to Sheila, texts sent and visits made. Still no contact.

Battling with his emotions; the frequency of the calls increased, texts filled Sheila’s inbox, he knocked on her door more and more often. Frustration moved to annoyance and then anger. Words were said in desperation and sent in texts for all to see.

Brian was arrested for harassment and I turned out at 11pm to represent him. I spent forty minutes and gleaned all the information above. I was able to judge who Brian was and where the root cause of the problem came from.

After advice and an interview, representations were made to the Sgt and a caution given. Brian was also told how he could enforce his court order for contact, and an appointment made for the following day.

I went on to the next client and forgot about Brian. I saw him a few weeks later pushing a pram, fussing about a blanket over his baby daughter. We stopped and chatted for a few minutes, made the obligatory comments about a beautiful baby, wished him well and went on with my day.

A few days ago I was called to the police station for a “lump of a man” who had been difficult from the moment he came in and was still being difficult in his cell. He had been arrested for common assault.

I went straight up to the station. I was told that the client was Brian and was told that four weeks ago he had punched his ex partner over a contact visit, they were both in the middle of a busy shop, people and children had been scared. He was asked to leave and he had walked off.

I was told that he had admitted it when he was arrested and that the interview was a formality. There was no injury but having in mind his earlier caution on the same victim, he was likely to be charged.

I was able to find out by speaking to the officer, although he was reluctant to tell me, that the statement had only been made three days ago.

I spoke to Brian. He was in tears, a monster of a man sobbing into his fists in the corner of the interview room.

It seemed that, on the day, he and Sheila had made the usual arrangements for a contact visit, but one of them had made a mistake and having waited twenty minutes Sheila had gone off shopping. Brian had called her and when she said she was in the supermarket shopping, he had gone down to speak to her and hopefully persuade Sheila to allow the contact visit.

He had gone to the shop where he had found Sheila with her head in a freezer choosing a pizza. When he called her name he said she didn’t answer him but thought she may not have heard him, it was after all a busy shop and her head was in the freezer.

“So what did you do?”

“I tapped her hard on the shoulder to get her attention so i could speak to her. She shouted at me and the Manager asked me to leave”

He denied that he had on he had punched her, and maintained that he was not angry with her.

He went on to say that he hadn’t seen Hazel since, and he had not paid Sheila maintenance for three weeks because he had not had contact. Three days ago she said she was going to report the assault.

He was scared that he would lose all his contact with Hazel because of more lies. He said that Sheila did not need him now as she had a new boyfriend. He said he didn’t want to talk to the police officers as they wouldn’t let him speak and thought he was stupid.

I explained that in law he had committed an assault by touching her without her permission, even if he had not punched her. I told him he needed to explain his history with Sheila to the officers and that the officers had not let him speak before because they wanted to protect him and themselves as the comments needed to be on tape.

Brian wasn’t certain whether he could say all he wanted to say properly, he didn’t think he could talk to the officers and let them know all they needed to know. He was scared that he would make his situation worse and by admitting an assault Sheila would go back to the court and he would lose his contact.

I drafted a prepared statement, Brian signed it, the interview started and the statement was read out.   I made it clear that Brian was happy to answer any clarification questions. With patience and cajoling from me and the AA Brian got through the interview.

The officer told the Sgt that he had made a full admission to the offence, that he had been frustrated by the contact being messed up and he had hit Sheila on the shoulder.   She was factually correct, that’s what he had said in his statement, and in the questions he had then answered. The meaning of what he had said was different, a fact I explained to the Sgt and the officer.

After much discussion and thought, it was agreed that on the balance of the evidence, the lack of corroborative witnesses and taking Brian himself and the situation behind the allegation into account that there should be no further action and Brian was released.   He still has to resolve the issue of contact but at least he does not have the extra burden of a charge to deal with.

Brian is just one of the people that find themselves in difficulty who need help and don’t know how to help themselves.

The current government plans to cut the legal aid fees again, the introduction of two tier contracts mean the relationship we have we clients is at risk of being lost.   The risk is that a fee needs to be effective and profitable, and the longer you spend with a client in the station the less profit there is.   Experience will be sacrificed for cheapness.   The vulnerable cases that need time and patience may be swept to one side for a quick and easy fee.

In Brian’s case I could spend time with him initially at the time of his first arrest and obtain the vital information about his personal circumstances. I developed a relationship of trust with him, and even as an authority figure he felt able to ask for me again.   Of course legal aid lawyers do the job because it’s a living, it pays our bills and generates an element of profit (albeit ever decreasing) for the firms we work for.  Yet, no-one I know who does this job does it for money alone.   We do it because it needs to be done and because we want to do it, and because we all believe that those we act for are entitled to have someone stand up for them and speak when they can’t.

We are not heroes, simply people who believe that access to justice is as important for those who society think don’t deserve it as for those who they do.

Not heroes, just normal people doing a difficult job…

The pile of files sitting on my desk at the moment represent to me the cases I have to deal with in the next forty-eight hours, or have dealt with in the past few days.    They include three young lads contesting an ASBO, two or three shoplifters who have fallen on hard times, an older man who on a night out tried to stop his friends doing something silly and got dragged into a brawl, a woman whose son was playing up and in trying to calm him down is alleged to have scratched him, a Dad who having been prevented from seeing his young son for seven months is charged with harassment after he repeatedly begged his ex for contact by text.

For the people whose name is on the front of those files they represent a critical point in their lives. For some it will be the one and only time that they ever come before a court, for others it will be another visit in a long list of appearances.   How I deal with those files, what work I do and how I present their cases could make a real difference in the outcome for them.

My first senior partner was an old school lawyer in every sense of the word. He was from a fortunate background which meant he didn’t need to work, and probably hadn’t needed to work for the nearly forty years he had been qualified. He didn’t need to turn out at 2am on a Sunday morning but he still regularly did.

I once asked him why he still flogged away at the coal face and he told me that he felt he had a moral imperative to speak up for those who could not themselves. He said clients would come to me to discuss their problems, their issues and put them all in an untidy pile on the desk in front of you. As their lawyer it was my job to try to sort through those problems, those messy issues and as far as I could make sure that the pile of problems and issues they took away were at least a bit tidier and a bit smaller when they went away.

As a legal aid lawyer this is what I have always tried to do; this is what in my experience my colleagues, friends and other legal aid lawyers try to do on a daily basis up and down the country. It may not always be appreciated, it certainly doesn’t pay well and it drives the accountants mad.

We are not angels, we are not crusaders, we are not all morally blind liberals. We all have the bills to pay, the calls on our time from family and friends, the worries, the hopes and the expectations that those we represent have. We just understand that clients should have a choice in who they put their trust in, who they want to make their problems a little more manageable. Quality advice makes a difference to the client, to the victim and to all concerned. We are committed to providing a quality service that we can be proud of.

As lawyers we stand up every day and plead our clients cases, we ask for understanding of what they have done, we argue their case because they can’t.

This is what the Ministry of Justice is seeking to take away, this is what they are trying to dismantle in favour of a supposed cheap, efficient and acceptable service. This is why I and thousands like me continue to fight against these cuts, against the way our profession is being pushed.

If you want the right to choose the lawyer that will care about the name on the front of the file then please do the same. If you want the profession to wither on the vine then don’t do anything at all, sit back and hope someone else does something, and that you are never the name on the front of one of those files.

Plus ca change…

I went to bed on Thursday night knowing that on Friday morning there was going to be a lot of fuss and a lot of head scratching.  It seemed that the polling companies had massively misjudged the mood music and the level of hatred for the so-called “nasty party” was in fact more accurately described as grudging respect.   After five years of austerity and cuts the backlash at the Conservatives simply didn’t materialise.   Instead the Liberal Democrats were sacrificed on the altar of public indignation, the SNP became in every sense of the word the Scottish National Party, UKIP proved that the current electoral system makes it hard to translate support into seats and the Greens need better PR.

Much has been said in the last twenty fours hours about what this election means, why it went the way it did and whether it was fair or not.   The reality is we now have another five years of Tory government and as a result there will be more cuts, more savings made and life will for many be even harder than it is now.   Yet, do any of us have the right to say that the decision was wrong, that those who re-elected a Conservative government were selfish and uncaring to do so.

The result wasn’t what I wanted, I wanted a party elected that represents me and my values and are willing and able do something about my concerns.   For me that’s simple, to protect the current system of justice and no more cuts to the legal aid budget, and to throw out the idea of dual contracting in legal aid.

Why do I want that?

Two reasons; because I genuinely believe that access to justice and proper representation and the ability to protect my rights regardless of my means is a vital part of any civilised and enlightened society.  Secondly, because I work in criminal justice and reliant on a salary to pay my bills, service my debt and provide for my children and ex-wife.   Further cuts and the introduction of dual contracting puts that at risk.   It is the second reason that means we now have another five years of Conservative government.   Very simply, more people thought they would be better off with the Conservatives than with the other parties and that means they were re-elected.

Is that selfish?  Possibly.

Is it right?  That’s not for me to say.

Is it understandable?  Absolutely!

I’m reminded of the quote which has been widely (and probably wrongly) attributed to Voltaire “I disapprove of what you say, but I will defend to the death your right to say it.” and much used in various campaigns of late.  The fact that a Conservative government has been re-elected doesn’t give anyone the right to abuse others, to blame others for it.  We all made our choices, we all had our chance to have our say and the fact we didn’t get what we wanted doesn’t necessarily make it the wrong decision.

For me, for now I will continue to oppose the cuts made to legal aid and the attacks on the justice system across the board.   One thing is certain, having a Conservative government and the possibility of another five years of Grayling means there will be no surprises.   We know what is proposed and what he has on many occasions stated he wants to do.

Now we just need to decide how we continue to fight him if we value our jobs and access to justice regardless of who we are or how we voted.

The Criminal Courts Charge

The Criminal Courts Charge

The Criminal Courts Charge came into effect on 13 April 2015 introduced by The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015. Although there was almost no publicity about it before it’s introduction, it will affect most clients who appear before the courts in England and Wales.

What is it?

Over the past five years the current Government has sought to cut the amount of money spent on the criminal justice system. These reductions have been achieved by cutting the budgets of the police, probation and court system. They have also significantly cut the availability of criminal and civil legal aid by reducing the offences for which legal aid is available, the scope of the cover and the number of firms who can offer a client advice. The Criminal Courts Charge is a further attempt by the Government to cut the amount of money spent on criminal justice and the courts and the current Lord Chancellor has said the charge has been created to help fund the criminal court system and cut the burden on the tax-payer. In effect the Government hope that the courts will be funded by those who are found or plead guilty to any criminal offence.

Does it affect me?

If you are found or plead guilty to any criminal offence committed on or after the 13 April, then the charge will affect you.

The charge becomes payable by anyone who has been found guilty or pleads guilty to any criminal offence, from the most serious such as murder to the less serious such as speeding and even littering.

The court, whether it is a Judge or a bench of Magistrates, have no discretion as to whether you should pay, can afford to pay or how much you should pay and will be imposed on sentence in addition to any court costs, compensation or the Victim Surcharge.

How much do I have to pay?

The level of charge has been set by the Government and it depends upon the offence for which you have been found or pleaded guilty to.

The amount you will have to pay is set out below:

Conviction following a guilty at Magistrates Court for an offence that can only be dealt with in the Magistrates Court – £150

Conviction by a Magistrates Court at a trial of an offence that could only be heard in the Magistrates Court when (a) the defendant did not enter a plea, (b) the trial proceeded in the absence of the defendant, and (c) the court dealt with the case on the papers without reliance on any oral evidence – £150

Conviction following a guilty plea at Magistrates Court for an offence that could be heard in either Magistrates or Crown Court – £180

Conviction in a Magistrates’ Court after a trial of an offence that can only be dealt with by Magistrates – £520

Conviction by a Magistrates’ Court after a trial of an offence that could be dealt with by a Magistrates Court or a Crown Court – £1000

Conviction following a guilty plea to an offence that can only be heard in the Crown Court – £900

Conviction by the Crown Court after a trial in the Crown Court – £1200

Magistrates’ court when dealing with a person for failure to comply with a community order, suspended sentence order or supervision requirement – £100

Crown Court when dealing with a person for failure to comply with a community order, suspended sentence order or supervision requirement – £150

What if I can’t pay?

The charge will be collected by the same people that collect court fines and compensation. You should immediately contact them to discuss payment of the charge at a level that they will accept. You should not ignore it, a court may think you have wilfully decided not to pay and that can result in prison.

Can I ask for the charge to be deemed paid as I have spent in time in custody or been given a prison sentence?

In short, no. If you are sentenced to prison and the charge is payable in any event and arrangements will be made to collect it from you upon your release. The court still have discretion to allow fines and costs to be remitted against any time you spend in custody.

Can I apply to have the charge looked at again?

If you agree a payment term with the fines officer and your circumstances change you can always ask the fines officer to look at how much you are paying. The fines officer cannot reduce the total charge imposed but he can agree to a lower payment rate. Of course if you want to pay the charge off earlier than agreed you can always pay more.

If after two years after the charge was imposed the charge is still owed, and you can show you have made every possible effort to pay it and you have not been convicted of any other offence you can apply to the court that imposed the charge to have it removed.

Should I just plead guilty so I pay a lower charge?

You should never plead guilty to anything that you have not done simply to avoid paying costs or the charge. It is important that you seek good legal advice as soon as you are charged with any offence. A criminal conviction will have an effect on you and can prevent you from travelling abroad or getting certain jobs.

At Reeds we understand that for some appearing in court can be very expensive. We will always try to obtain legal aid for all our clients, where legal aid is not available we will ensure that our fees are fair and reasonable. A guilty plea or conviction will mean that you have to pay the Criminal Courts Charge, if we can avoid that plea or conviction for you we will.

 

Choices…

I consider myself lucky to have a job that I enjoy, that lets me do something that I think makes a difference and that on most days I think I am not bad at.   Often, the hours are long, the pressure is unrelenting, the clients demands are sometimes unrealistic and the thanks are for the most part few and far between.   Yet, I wouldn’t change what I do and actually look forward to getting to work and getting down to it.   I am one of many who I am sure feel the same way.   Criminal justice on both sides of the coin, prosecution and defence is so much more than a job, it becomes a way of life and without wanting to sound all holier than thou, a vocation.

I joined the profession at the tail end of the last big recession in the nineties.   As a trainee, one of my responsibilities was trucking down to the local County Court to appear before the local District Judge in his chambers and represented one or more of a number of different banks, building societies and mortgage companies applying for possession of someone’s home who had fallen behind in their mortgage payments.   There would be twenty or thirty applications to be made every couple of weeks, each one representing another family that had become overwhelmed by the debt that rising interest rates, loss of their jobs and mounting bills caused by the recession.   As a freshly minted keen young trainee, eager to impress, it took me a couple of weeks to fully appreciate the impact on the people, almost always unrepresented, that I faced across the judge’s table.  Every time the judge refused the possession on a minor paperwork issue, or imposed a suspended possession order I took it as a blow, a loss for my clients.

The local district judge was, and probably still is, a fierce looking chap.   A smart beard, small round glasses and a quick tongue, he didn’t suffer fools gladly.   One Monday after an unusually large number of hearings, he asked me to stay behind.   We spoke for about an hour; about the job, about me, where I had come from and what I wanted to do, about the law, justice and people over a cup of wretched coffee whilst he smoked his pipe.   He told me what he thought the job was about, and why he did what he did.

He explained that as far as he was concerned as long as the other side turned up and could show to him why they had defaulted he would never take their home away and would always grant them a suspended possession order.   The banks had lots of homes, those appearing before him only the one.   The banks and mortgage companies could afford justice because they could always afford someone like me to appear before people like him.   Those on the other side not so much.  It was his job to ensure that the right thing was done.  He said to me that as long as I practiced law to always remember that there was no such thing as justice if it was only accessible to those who could pay for it.   That justice wasn’t just a concept, but a real and living thing that should be protected and fought for.   If I remembered that and strove to protect that, then it didn’t matter whether I won or lost each case.

That conversation stuck with me and I have no doubt helped make me the lawyer I am today, and certainly helped me decide that criminal defence work was what I wanted to do.   I have thought of those words often in the past few years as I have seen the profession on all sides eroded by cuts and seen people at their wits end as they realise that they cannot afford to be represented in court.

The Government in the past five years have systematically dismantled the justice system; cuts to the police force, legal aid, the courts, probation and prisons all in the name of saving money and reducing the deficit.   The cuts have nothing to do with austerity and everything to do with ideology.   Money may have been saved but at what long term cost?

Today we are asked to vote for a government for the next five years.   It is not for me to tell anyone how to vote, no-one should tell anyone how to do that.   Personally, I won’t be voting for any party that believes that access to justice is only for those who can afford it.

Making mistakes…

As another year ends, I along with many others have spent the past few days thinking about what I have achieved in the past year.  Where I have gone right, where I have gone wrong and what I might have done differently.

It’s been an eventful year that’s for sure.  A new employer, new friends and even perhaps enemies, the end of a relationship and the start of a new one, a health scare and a new-found belief in who I am and what I can do.

The reality is that I have made mistakes, I have caused some happiness and caused some hurt.  I have been good and been bad.  I have been the best I can and at times the worst.  I have liked myself and I have hated myself.   I have regretted some things and others I have no regrets about at all. It has, as I have said, been an eventful year.

So what in 2015 would I do differently?

If truth be told probably nothing.   It is important to make mistakes, to have regrets and to have fears but to press on regardless.  It is only by seizing every opportunity that you can grow, that you can have the experiences that define you.

To all my friends, both those that I have already met and those I am yet to meet, I hope that you all have a 2015 filled with happiness and one where you all make mistakes.

We need to talk about Chris…

If we are to continue to show the Ministry of Justice and Chris Grayling that their proposals over dual contracting are wrong it is important that we show them why.   The latest consultation seeks the professions view on the decisions made by the MoJ based on the Otterburn and KPMG reports, documents that were not made available to us before.

We all know how the cuts as they stand will affect our jobs, our firms and our clients.  We now need to evidence that to the MoJ.

@ReedsLAW (my employers) are hosting a forum to allow the profession a place to discuss the consultation, share your views, perhaps pool resources and information and build a picture of the feeling of the profession to help put some force behind our response.

Fifteen months ago the profession stood united against the Ministry; the Bar and solicitors doing what they do best and fighting for what they believed was right.   Time has passed and there seems to be less of a feeling of unity, with both sides of the profession eyeing each other warily across the court room.   It would be naïve to believe that all solicitors and all firms have the same goals, and some will certainly believe that the current proposals are workable, others who know it will kill them off.

Whatever your view making it heard is the important thing.

Link to the consultation documentation here

Link to the forum here

(NB Forum is not optimised for mobile)