Understanding Legal Jargon – A Bluffers Guide

Law-books

The skill of the legal professional is to convey complex themes in clear and straight forward language.   When I started my training contract my Principal told me that I should never use ten words, when one will do and never try to hide behind complex language.   Across the years I have found that the real skill is saying what you mean without meaning what you say.

Use this handy guide to work out what is really going on.

In court

My friend – The lawyer standing next to me, I’m not his friend but I cannot say “The unreasonable bastard who will not listen to my point of view”

My learned friend – The lawyer standing next to me who decided he didn’t like to work at nights or get grubby at the police station and joined the Bar

I am instructed – Look I know its pure fantasy and scarcely credible but that’s what the client wants me to say.  I am saying “I am instructed” so you know that I am not a total idiot and that I don’t believe it either

My client deeply regrets his actions – My client deeply regrets that the police were standing at the corner of the road and saw him bottle the other bloke or else he would have gotten away with it

If I might have a moment to confirm that with my client – Bugger, bugger, bugger how do I know?

My client is actively seeking work – He has been to the job centre and looked at the job ads in the local paper in the last month

It is very unlikely that you will see my client before you again – He knows now how the police caught him the first time and is very unlikely to make that mistake again

In a reported case – I don’t have any case authorities but I am sure that there must be some (When I used to appear at Medway Magistrates, I used to cross swords with an Australian who was on secondment to the CPS and he did this all the time, when we pressed him to name his authority he would always concede he was referring to one of his cases in Australia that had  made the local newspaper!)

If you are not with me on that point – I am trying to persuade you to do something you don’t want to do and if I can’t the chap behind me is going down for a long time, so go on just do it

From the Bench

Is there anything else you would like to say on behalf of your client – Shut up, sit down, we had made the decision long before you stood up and started bleating at us

We have listened very carefully to what your advocate has said on your behalf – Now that he has shut up and sat down we are going to do the polar opposite of what he asked, and implement that decision

We find that neither the Prosecution or the Defence witnesses in this matter are credible – We have just sat through three hours of the two of you slagging each other off in front of us and are not amused

In the absence of direct evidence on the point I have applied my common sense (a line regularly used by a resident DJ who used to sit in my local court) – Guilty

There are significant grounds to believe that you will…(in the context of a bail application) – You are a nasty piece of work and there is no way we are letting you out today

I’m not sure we follow the argument, could you explain it again? – We haven’t been listening to a word you have said and suddenly realised we are now expected to make a ruling on it

Thank you, you have been most helpful – We were wavering whether to grant your client bail, acquit him or impose a non-custodial sentence, now we will definitely not be getting bail, is guilty and is going to prison

In the Police Station

We will be ready in thirty minutes – You will turn up in thirty minutes, wait around the front office for another thirty minutes and then spend another thirty minutes looking imploringly at the Custody Sgt for any signs of life.  Then and only then will we come down with a mug of tea and a stupid grin on our faces!

The officer will be right down – See above

The officer is just finishing another interview but will be ready really soon – See above

(At 3am) – Your client wants another chat with you – He has banged on his cell door for the past four hours and we have had to switch the call buzzer off.  Why should we be the only ones that have to put up with him?

(In response to the question – Has the victim made a statement?) He has been spoken to – We don’t have a statement, we are never going to get a statement but we really hope your client will just cough it anyway

Would you like to make any representations on bail? – You know and I know  your client is going to be kept in for court tomorrow!

(Officer to Custody Sgt) – Client nearly made a full and frank admission – Client accepted he was there but denied the actual offence

I’m not prepared to disclose that – If I told you that, then it would be very likely that you would know more than me on this case and I would feel inadequate

We would be prepared to offer him a caution if he were to admit the offence – We don’t think we have enough evidence to charge but really need the statistic

We are not here to trip you up, all we want is the truth – Come on you little toe rag we all know you did it, just admit it and we can all go home

The necessity for an arrest was to secure and preserve evidence and for the purposes of interview – Look I caught a criminal, and that’s what I get paid to do, just authorise his detention

In the Office

You were next on my list to return your call – Good grief, I’ve only got one head and two hands and I can’t be expected to do everything!

From secretary I’ve gone through your files and sorted them as to priority – Will you please get on today and brief Counsel and do that statement?  The trial is next week!

To Receptionist – Can you tell him I am out and will call him as soon as I can? – I really cannot stand talking to that man again today

Receptionist to Client – He is out of the office at the moment but he says he can be reached on his mobile 07… – Why should I do your dirty work?

Boss to Me (very often) – Are you busy? – Accounts have told me what you billed last month, pull your finger out, I’m not paying you to sit around all day

 (to be continued)

Not only that…

TV IN COURT

There has been much to comment on over the past few weeks in the field of criminal justice, just in time for my period away from the office and trying to keep away from work.   Now back in harness I thought I would put down a few thoughts, and try to provoke some comment and discussion.

Televising Court Appearances

The ban on TV coverage in the criminal courts seems to have moved one step closer today with Kenneth Clarke announcing this morning that he is to allow judgements in the Court of Appeal and later in the Crown Court to be televised.   It would seem that one of the main reasons for doing this according to Mr Clarke is public confidence; “What we need is public information, public confidence and above all transparency in the way the system works”

Ken Clarke
Image via Wikipedia

So how would such coverage be used and how would that coverage be presented to the viewing public.  If all that is shown are the sentencing remarks then what format would best be used?   The reality is that the footage is most likely to be used in news bulletins and set pieces, or on rolling news programmes.

If that is the case then it would seem unlikely that the sentence or judgement would be broadcast in its entirety and savvy news editors will present the parts that offer the best sound bite or headlines.   The other use is perhaps the documentary or case retrospective, where the case is picked over by pundits and experts at some point in the future.   Videos of clients interviews are already been sold to documentary companies and used in case documentaries.   I dread that happening to one of my cases, the last thing I want is for the public to see me at 3am propped up in the corner of an interview room frantically trying to take notes.

I am all for openness in the judicial system.  I welcome anything that helps the public understand what I do and what the system does.  I am not sure that putting TV cameras into courts is necessarily the way forward or achieves that.   How many people would in fact want to watch the sentences themselves is a wholly different question.

Although of course, and I hope you understand I am joking here,  link it in with the Red Button and ask the public to reach a verdict and the Government might have a lucrative source of funding for the criminal justice system.

Cost of the Cops

In the relentless pursuit of cost savings and reducing budget deficits the think tank Policy Exchange has suggested that one way of increasing the visible presence of the police and thereby reassure the public is to have all officers commute to work in uniform.   I know a lot of police officers, I come across them on a daily basis and on speaking to them, and judging by the comments made yesterday across Twitter this is an idea that is very unlikely to gain any momentum.

There are certain jobs that for very sensible reasons, you may not want your neighbours or your local community to know you do.   I don’t live where I work because I choose not to bump into my clients whilst out shopping with my children or going out for a meal with my wife, and I am on the criminals side as it were.

It probably comes as no surprise that most of my clients do not really like the police.  Whilst many have made drunken and ill-advised threats at the point of arrest that they are never likely to follow through, there must be other clients that mean what they say and want to cause harm to the officer and their family.   Take for example Raoul Moat, on the day that he decided to settle what he perceived to be a justified grudge against those that wronged him, high on his list were police officers.   What if he had simply come across a police officer on his own, on his way home, no PPE and no radio?

It also means that the officer is on duty from the moment that they leave their front door, for which they are not paid.  Would the public know that the officer walking up the road is on or off duty, it would not matter to them at all.   They would still approach them and would still expect a response.  The fact that the officer is unlikely to have his equipment, his radio and be alone puts him at risk.  Likewise, what happens if he or she should come across an incident that needs a police officer but he is either on his way to or from work?   Do they intervene and try to affect an arrest?  I know that off duty officers do often intervene and it is a common complaint from a number of officer’s partners that they are never off duty.   By being in uniform they would feel obliged to intervene.

I know that the justice system now operates because of the good will of all those involved, police officers working massive shifts, solicitors turning out 24 hours a day and often doing work for no payment as legal aid is not available.   Court clerks and unpaid magistrates sitting through lunch and even overnight to cover the cases.  This is one step too far.

I am not an apologist for the police, but I know they do a job that many of us simply would not want.   There are good police officers and there are bad police officers but all are committed to doing a job where they really do put themselves at risk.  I may not agree with them all the time and may think that very often they are barking up the wrong tree, but on this point I agree with them totally.

My advice to any think tank is to do the job you are commenting on for a decent period, then and only then are you qualified to make a suggestion as ridiculous as this one.

A Feral Underclass

Kenneth Clarke crops up again in this blog following his comments on the causes of the recent riots and looting in August this year.  He stated in a piece for the Guardian http://www.guardian.co.uk/uk/2011/sep/05/kenneth-clarke-riots-penal-system that the cause of the riots showed an urgent need for reform to stop reoffending among  “a feral underclass, cut off from the mainstream in everything but its materialism”.   Hardly words that will help to bring those responsible back into mainstream society.

He went on to say that;

“It’s not yet been widely recognised, but the hardcore of the rioters were in fact known criminals. Close to three-quarters of those aged 18 or over charged with riot offences already had a prior conviction. That is the legacy of a broken penal system – one whose record in preventing reoffending has been straightforwardly dreadful.”

As an assertion of fact it is a bold one, but sadly it is likely to be proven wrong.  It may well be the case that of the 1700+ offenders arrested and brought before the courts to date 75% have previous convictions.   In a period of four or five days I am fairly certain that there were more than 1700 persons on the street committing offences.   Those that have been caught and put before the court so far have, were I am sure caught because the police knew of them before.   Officers recognise faces because they have dealt with them in the past, that’s why they knew where they lived and were able to arrest them days after the incidents.   There remains an equally large number of offenders that the police do not know, and have yet to find.  To say that 75% of rioters were known criminals is both inaccurate and misleading at this stage in the game.

Mr Clarke has an agenda which was made clear well before the riots, that he wants to move away from prison as a way of punishing and rehabilitating offenders.   Payment by results is at the core.   Various bodies are to be paid money to rehabilitate offenders, they get paid if the individual does not commit further offences.   Some might think that the riots were rather well-timed.

An Eye For An Eye

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I read with interest the various twitter entries and blog postings this weekend following the announcement of the political blogger Guido Fawkes that he intended to create an e-petition seeking to reinstate the death penalty. As ever and unsurprisingly there were vociferous views expressed on both sides, some based on reasoned evidence and others based on nothing more than heartfelt emotion.

The reintroduction of the death penalty is a discussion that gets stirred up every now and then by the mainstream media or campaigning groups. Often, but not always, in the immediate aftermath of some tragedy or the sentencing of a particularly heinous crime. The debate takes hold like a bushfire, lots of heat and smoke and then peters out to a smouldering ember waiting to be fanned into life at some point in the future.

The pro and anti viewpoints are well represented elsewhere in the media and internet. I do not intend to address those arguments here. My view is that the usual pro argument regarding a life for a life, cost and deterrent are founded in emotion and not fact. Have a look at the blog postings of @charonqc (www.charonqc.wordpress.com) and @davidallengreen (www.jackofkent.blogspot.com)  for short and sharp ripostes to those arguments. On the other side the anti arguments whilst founded in fact perhaps fail to understand or take into account the emotion and strength of feeling on the issue.

The Sun, never a paper to knowingly let a bandwagon roll by, have shown their support for the current campaign. After all, a lynch mob can buy a lot of papers.

They ran a similar campaign in 2008, when they claimed at the time that 99% of the 95000 readers who had responded to their survey supported the death penalty for all murders. In one article they canvassed the opinions of various family members who had suffered a loss in headline murder cases at the time. With the exception of one person, Sara Payne, they all believed that the death penalty was not only necessary but also just. (www.thesun.co.uk/sol/homepage/news/justice/article841077.ece)

The clamour and volume of the pro lobby, then as now, is perhaps indicative of how the public view the issue of sentencing as a whole.

Ask the next person you see what the purpose of sentencing is and I would hazard a guess they will tell you punishment. If you ask them whether there are any other purposes to sentencing and they will struggle.

Of course punishment is important but it is only one of the five aims set out in the Criminal Justice Act. The others include deterrence, rehabilitation, protection of the public and reparation to the victim. These are often forgotten in the need for justice to be seen to be done.

Having spoken to a number of people about the campaign, there was a very clear majority in favour of the death penalty. With non lawyer friends the percentage of people supporting the death penalty was very high. Less so with lawyers, and all but one criminal lawyer I spoke to opposed it.

The level of support did not really surprise me; what surprised me was the number of people who went on to say that they would happily pull the lever or administer the injection.

Moreover they would not want to see the death penalty limited to child or police killers, but for all murders, rapes and child sex offences.

The key reason given was that a murderer or a rapist has taken the life of another and therefore does not deserve their own. That the sentences passed at present don’t reflect the seriousness of the offence. Life should mean life, and not thirty years with the chance of parole much earlier than that.

Each successive government professes to be the party of law and order, to want to address the causes of crime and to be tough on those that commit crime.

Yet the public simply don’t see this. They expect those that assault them, burgle their houses or murder their family to be sent to prison for a very long period of time and in most cases not be released. Made worse by injudicious comments by ministers who suggested the sentence may be reduced even earlier by a quick guilty plea. The public take the view that a guilty plea deserves a proper sentence whenever it is entered.

They don’t see the criminal being treated as a criminal; they see murderers being given three meals a day, satellite TV and games consoles, education courses and support when they leave prison. They see criminals being able to campaign for voting rights, being able sue for damages when their rights are infringed and they, as tax-payers paying for it all.

They see themselves as the victims or the relatives of victims being given nothing, perhaps having to see the criminal walk down their High Street larger than life a few years later.

So in that context the death penalty is the easiest and most just punishment. They can’t have all those things if they have been executed.

The question I asked all those who supported the death penalty was what if their was a mistake. What about the fallibility of the system. What if, as has happened, an innocent man gets put to death? The degree of certainty in the system by some was amazing, others perhaps in jest suggested it was a risk worth taking if the courts got it right most of the time.

When asked whether their support would be as unstinting if it was a member of their family that was facing a death sentence, then the doubts were raised. Then the issue of absolute certainty in evidence comes to the fore, the issue of right of appeal and so forth. Yet, to their credit most would still support it but for a much smaller list of offences.

One of the people I asked turned the issue on the head for me. What would I want to happen to the person who abducted and killed my three year old son? My head as a lawyer who works in the system, says prosecute to the full extent of the law, and a life sentence.

My heart says string him up from the nearest tree.

The issue deserves time to be properly discussed. The pro campaign, the anti campaign are both right on their own way. If nothing else let this campaign be used to examine the wider issues of sentencing and the publics concern there,

I am anti the death penalty, it should have no place in a modern and progressive society. The arguments on cost, rights and justification are in my view outweighed by the harm. Two wrongs do not make a right.

Let the debate not be about which MPs stand up and be counted for putting the publics rights ahead of child and police killers. Let the debate be about restoring the trust in the justice system as a whole.

Public Outcry Over Criminal Legal Aid Cuts….NOT!

legal aid cuts

Hello are you a solicitor or a barrister.

Come in, sit down.

I have been reviewing the evidence in your case and I’m afraid I have some bad news for you. I will say it quietly so as to try and not upset you.

Nobody likes you.

There I have said it. No, no please don’t get upset.   After all, what do you expect?    You are arrogant, elitist, aloof, expensive, lazy, uncommunicative and prey on the misery of others.

As lawyers we are seen on the evolutionary scale only a little higher than pond life. Only estate agents and traffic wardens rank lower in the publics affection. Worse still it’s all our own fault.

As a profession we are really very bad at selling ourselves.   We really do need better PR.

Just look at how lawyers are portrayed in the general media. Fat Cats, ambulance chasers, snake oil sellers and quite often in league with the devil, if not the devil themselves.

The reality of the situation is that the public think lawyers are lawyer are lawyers, it does not matter where we ply our trade.

Lawyers worked alongside bankers in the financial industry, and we all know what the bankers have been doing over the past few years.

Lawyers administer compensation schemes for the victims of the BP disaster and similar, and we all know what rapacious bastards the oil companies are.

Lawyers represent footballers, actors and media stars when they want to get an injunction against the lady who they have had an affair with and don’t want anyone else to know about because they don’t want their public to think badly of them.

Lawyers are creaming millions of pounds from the government in Legal Aid. Lawyers sue the NHS for untold damages which means that the hospital haven’t got enough money for Grannies hip operation this month and she is back on the waiting list again.

As criminal lawyers we are seen as particularly pernicious and unpleasant. What question do you get asked more often than not by others at parties and social gatherings.  I bet it is something along the lines of  “How can you sleep at night knowing that you are trying to keep that rapist, burglar, paedophile out of prison?”   In the minds of the general public we are seen as only one step removed from the client.

Look at the public outcry at the way the Dowler family were cross-examined. What was the lawyer doing?   He was acting upon his clients instructions. I have never met the man, or any of the solicitors that acted on the case, and yet I can guarantee he didn’t enjoy one minute of that experience.   He didn’t want to have the Mother break down in court, he didn’t want to portray the Father as some sort of repressed sex fiend.   He was following instructions, and yet who was the villain of that set piece, not Bellfield, but the lawyer.  Even the CPS, fellow lawyers, joined the cry and fuelled the fire as to how outrageous it all was.

Last year, the daughter of a man killed in a road traffic accident by a client of mine slapped me hard and then spat full force in my face outside of the court room following the sentence.   She said nothing to the client who had just been fined £2000.

Why attack me?   Simple, in her mind, I had been the one that acheived the fine for the client.   She wanted him to face a firing squad that day or at the very least face the rest of his natural life in jail.   She had just been told that her Father was effectively worth £2000.   The client was never going to face a punishment other than a fine.   He was a very pleasant man, and had done an awful lot for the whole community he had lived in and served for many years.   A stupid mistake, a momentary lapse in concentration and his life and that of the family were ruined.   Tragedy writ large in a small village.  In standing up and representing this man, who was unable to articulate his position, his sorrow and his guilt himself, I became the villain and not him.

In the minds of many police officers I deal with, and surely I cannot be alone, I am as bad as the client.  There he is trying to make the streets safe by getting the client charged and in prison; there I am trying to get the client back on the street. Why do I want him on the street? So that the police officer can arrest him and I can make more money from him.

A particularly oafish officer said to a client the other day who was following advice and not answering the questions, “Don’t think Mr Glendenning is here for you, he’s only here for the money.  He doesn’t care about you, he’s not the one that will have to do the sentence when you get convicted.  You should tell me the truth and get a lesser sentence in court.”   What was said to the officer was not pleasant and he now fully understands my position.

The client was a regular and knew what the officer was trying to do, and why he wasn’t answering questions.   Yet still he thought that I was making a shed load of money from him, not because of him, from him.   He asked me how much I got paid for coming to the police station to represent him that night.

We had been there four hours at the time, I had had a thirty minute drive there, was going to have a thirty minute drive back and it was at that time 1am. I told him, £150 or rather that was what the firm was going to get paid.   I was going to get rather less than that and then it was going to be taxed.

He told me I was mad and it was hard not to disagree.    He was a plumber by trade.  We worked out that if it was him coming out on a Saturday night, spending five hours of his time he would be charging me a call out fee of £120, and then for every half hour he was there after the first hour he would charge me another £55 .   So in total I would be paying him £560 plus VAT and he said he was cheap.  Yet he still thought that he represented better value for money, that what I was doing did not really involve any real skills or abilities.   He could do what I was doing, could I do what he did?

From another perspective, a client last month proudly told me he had just paid £1400 for an all singing and all dancing TV and home cinema kit. It was clearly his pride and joy.

He baulked when I told him that it would cost him £250 all in for a Special Reasons argument which, if succesful would mean he could keep his drivers licence and continue to work as a scaffolder.  He paid and he kept his licence and paid up through gritted teeth, muttering about parasites. For a fifth of what he had just paid for his TV he kept his licence and this means he can still work, can pay his rent and buy his food and presumably pay for his TV.   The difference being when he sits down on an evening with a pint of beer and his pizza he can look at his TV and think that was money well spent. In his mind he has nothing to show for the £250 he spent with me.

Now I know that he paid me privately, and he didn’t get the benefit of Legal Aid, but it’s what he thought that counted.   Was I value for money, was I just making money from him at a time when he was vulnerable, in need.   The answer was clearly yes.  When I am spending public money then that feeling is magnified a hundred times.   I am costing the Government, and by definition all those people who are paying their taxes money that could be spent more profitably elsewhere.   The general public simply don’t see the benefits we provide, the service we offer.

The government don’t like you either, and the LSC think you are a crook. They think you are paid too much and that you do things that you don’t need to just to generate a fee. Why do you need to turn out to the police station when telephone advice could be given?

Why should you be paid for the time you spend on a case when we can pay you a fixed fee? The reality of what we do in the police station, as to why we are there is not considered, will not be considered. We cost the tax-payer money and we need to say the tax-payers money at all costs. If people are interviewed and charged without a solicitor present then that’s a risk we can live with in the interests of saving money. After all, there is no smoke without fire is there?

The legal aid cuts proposed are founded on misconception and mistake.  They are about costs saving and that is all.   They are not designed to make the profession better or to make it more efficient.   We as a profession know that.   It is hard to avoid the conclusion that the recession and global meltdown was in many ways quite convenient.   Whole areas of publically funded professions can be cut down to size.   It’s not necessarily a vendetta but it is an erosion of our rights.   We are able to discuss that amongst ourselves and come up with campaign groups and all agree that we need to do something.

What we dont have is public support and we are unlikely to get that based on how the public feel about us.  Moreover it’s just not a vote winner is it?

NHS reforms were “paused” and amended as a result of a concerted effort by the profession and some MP’s who had been sucessfully lobbied.  Mess with the NHS and you need to be sure you are on firm ground.  Everyone can think of someone who is in hospital, has been in hospital or might need to go to hospital.  They want to be certain that when they need it, there will be someone to treat them quickly, efficiently and more importantly knowing what they are doing .

Tell the general public that you might have to close your business because you can’t afford to accept the rates paid by the LSC.  Explain to them that if they are not careful when they need a solicitor to come out to them at three in the morning there may not be anyone there to do it as a result of legal aid cuts and they just shrug.  Good riddance, another lawyer gone.  In their minds you represent the worst elements of society and that’s just not them and will never be them.

The old adage rings true.  Nobody likes a lawyer until they need one. Everybody understands the need for state funded education and state funded health care. Indeed they want it and expect it.

They don’t appreciate the need for state funded lawyers.  They can’t imagine they will ever need you.  Until they are in the wrong place at the wrong time, they have to fight for custody or any other myriad of legal issues we deal with on a daily basis they wont understand the significance of losing that right.

Getting the public to understand that is the only way to change things and we are our own worst enemies at winning over the public.