Plus ca change…

Change Letters

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.

Transforming Legal Aid – The next step is into the unknown…

steps_down_to_the_dark_abyss_by_cheapwhiiskey

When I first started blogging about the legal aid reforms proposed by Chris Grayling I referred to them as an extinction event for the profession. The proposals as they stood at the time were likely to drive all but a very few providers out of business. It was envisaged that the reforms would result in widespread firm closures, job losses and a devastation of the junior Bar. Nearly a year later the situation is no better, and arguably a lot worse.

The Ministry of Justice posited the need for the reforms as being effectively out of their control; like countless others before him Grayling relied on “just following orders” claiming he had to make his books balance after a spending review was imposed on him from above. What he didn’t do was fight his corner and fight the level of cuts required of his department.

After that he went on the offensive, briefing and briefing hard against the profession. Whenever the reforms were discussed by the Ministry the same old phrases were trotted out; most expensive legal aid system in the world, £2 billion of hard earned tax-payers money spent last year, reforms designed to ensure a stable supplier base and protect access to justice for all.

Those reasons have, over the last twelve months been shown to be at best inaccurate, at worst intentionally misleading. Little surprise there, from a Minister who has a track record for being openly dishonest with facts and figures. Both sides of the profession have time and time again highlighted how the Minister has got his figures wrong and why the proposals were not just wrong but incredibly short-sighted and did nothing to enshrine access to justice.

Last Thursday the Ministry of Justice released their response to the last consultation on Legal Aid. Two months later than it had been originally promised and totally ignoring the concerns raised by the varying factions of the profession. It is perhaps a measure of quite how bad the proposals are that there are no winners in these reforms, only losers, some heavy losers and some very heavy losers. There is nothing in the proposals that will give heart to the smaller firms, and very little that give heart to the likes of the Big Firm Group. More worrying to all of us as legal aid lawyers is the fact that access to Justice is the biggest loser.

If we are honest with ourselves, and to be blunt as a profession we rarely are, these cuts were signposted a long time ago and we blindly carried on hoping the day would never come. Lack of leadership from the Law Society, the protection of vested interests and the minutiae of just doing the job meant we carried on regardless.

We showed the Ministry that we could stand together and managed to stage a half day of action, but in the peculiar way that the profession seeks permission for everything we wrote to the courts and the sitting Judiciary and politely asked that our clients cases be adjourned or put back in the list. The courts kept going and there was very little chaos and the wheels of justice simply ground a little slower for three or four hours.

The consultation response was expected in December, the fact it was published over two months was the first example of irony in the document. The Lord Chancellor wants the profession to demonstrate they can work efficiently, quickly and cost effectively; aims he clearly doesn’t expect of his own department. The delay might be excusable if the proposals had genuinely considered and actioned the proposals put before him. What we got was in reality the worst possible compromise.

There are in reality two schools of thought as to what we as a profession, and by we I am talking about solicitors, wanted from the consultation. The big firm group wanted extreme market consolidation which would give increased volume. Although they oppose the cuts in fees they could make them work if the volume was there. The rest, oppose market consolidation and cuts in fees and want a totally open market for own and duty clients. If we fail then we fail because of ourselves and not because of some half-baked attempt to engineer the market. Now many of us will fail because of a way of working has been imposed on us that takes no heed of what we do and why.

The Ministry of Justice smiled, nodded and politely listened to what we had to say. They met with some us, they snuggled up to the Law Society and took large parts of what they had suggested and then added a huge cut in fees. So what we get is market consolidation, dual contracting and a cut in fees that means no one can do the job and work with a guarantee that their future is sustainable. What we have is not enough market consolidation that allows the BFG enough volume to survive fee cuts; too much market consolidation to allow the smaller firms to even open their doors.

The Ministry of Justice has done exactly what it intended to do when it first published the initial consultation document. Client choice is academic if there are no firms able to do the work. The reality is that unless you secure one of the duty contracts then you cannot really open the doors to the own clients. If you don’t have a duty contract then at the end of the day where are your own clients going to come from in the future, what happens when your own clients grow up and stop offending, and most do?

So what do we do now?

There will be no immediate climb down by the Ministry of Justice. Chris Grayling is a man with a mission, and like zealots and missionaries before him he is blinded by the cause he follows. Politics is a cruel mistress, but for politicians it is a mistress that must be followed and appeased. He is well aware that he may be in post for less than another 18 months. If he loses his position after the next election and finds himself in opposition he wants to be able to say to his political masters that it’s not his fault, he made the cuts asked of him, he has shown that he will not bend to whims of this he represents, he did not cave under the pressure.

I was talking the other day to a client who has some extreme and frankly unpleasant views on a lot of political issues. He said “Campaigns for change only work when you can convince those other than the activists to care about what you are campaigning for”

In the context of lawyers fees, legal aid and access to justice this is the key for us. We strike to raise awareness of the issue and protest the cuts. In doing so we must ensure the public know why, and we must gather the momentum of their support, to do anything else it all becomes a pay negotiation and we all know it is so much more than that.

As we stand outside the courts we usually stalk through make sure you tell those who ask why.

The price of everything, the value of nothing…

money_2196794b

Let me make one thing very clear from the outset, I and my colleagues increasingly vocal opposition to the proposed reforms to criminal legal aid have nothing to do with the risk it poses to mine and their lifestyle, the loss of our jobs and incomes. We all appreciate that we do not hold any high position in society that means we are entitled to a job for life.

Our opposition is to the very real loss of access to justice, choice and fearless representation that will inevitably follow if these proposals are allowed to go ahead. The loss of protections afforded to the people that need it the most and because we see these proposals as a further step down the road to the end of a justice system that is rightly regarded as one of the best in the world. My concern is that these proposals will simply be nodded through without any real consideration of the long term effects and once in place will become almost irreversible.

Of greater concern is the lack of general awareness to the whole issue by the general public as to how it may affect them and the fact that they are being fed an argument that I initially thought was ill-conceived but now believe is intentionally misleading.

Examine the various press releases over the past few months that have come from Chris Grayling, nowhere does he refer to persons appearing in court as defendants or the accused. Instead he uses the term criminal, criminals and offenders. He refers to legal aid as profligate, lawyers as racking up huge fees for cases that run on and on, that the system is the most costly in the world, that the hard-working public pay for legal aid and that they (the public) have lost confidence in the system. In this way any attempt to amend the proposals, any opposition to the proposals by lawyers appears to be an attempt to preserve our own little fiefdom.

It does not matter that the figures used in the consultation are over a year old and no consideration is made to the reductions in the budget already achieved by a lowering of fees, the downturn in work through the courts. It does not matter that the huge fees are incurred in a very small number of cases dealing with the most serious of crimes, including terrorism and the like. These cases will always exist, these cases will always cost vast sums of money, and if you are charged with an offence then you must have a right to defend yourself and if you cannot afford to pay then there must be a way for the state to provide you with that right. You can’t have “Justice Light” for those people you don’t like or don’t want.

The argument that we have the most costly legal aid system in the world is and always has been a red herring. You cannot compare systems across the world and say that one is cheaper without highlighting the differences in approach. We have an adversarial approach which means the work is done by lawyers, in an inquisitorial system the work is done by the Judges. It costs the same amount of money; it’s just put against a different budget.

In my opinion these reforms will not have any effect on restoring public confidence in legal aid, far from it. The eventual effect will be dissolution in the reputation of the profession and the belief that justice has been disregarded in favour of price. The real problem is that affording “criminals” rights to a defence and a choice if it costs money is simply not an attractive proposition and that as a member of the public no-one believes it can ever happen to them.

Access to justice is not just about catching the bad man and punishing them. Justice is about the righting of wrongs, of balancing the scales and of ensuring what is right is done. Access to justice means that the single Mum has the ability to properly fight for contact with her children. Access to justice means that a decision by a body of state can be challenged by anyone and their views heard and explored. Access to justice allows the recently dismissed shop worker the right to have advice as to whether he was sacked lawfully without having to worry about the cost. Access to justice means that the prisoner serving a sentence can challenge the decision of the parole board to not release him as he has not completed the courses necessary when they are not available to him. Access to justice means that those accused of a crime can approach a lawyer of his choice who knows him, understands him and wants to properly advance his case. Access to justice means that a man accused of a crime can take advice from a lawyer he trusts and respects to give him the right advice and enter a plea in a timely fashion.

On 1 April the reductions in legal aid entitlement set out in LASPO came into effect, removing at a stroke legal aid from a huge number of people. These cuts were opposed by me and others and received debate time in parliament. The coming few months will show just how damaging cutting legal aid can be as those cuts bite.

On 9 April 2013 the Ministry of Justice announced further cuts in the proposal document “Transforming Legal Aid”. These proposals will not have any debate time in parliament; these cuts don’t need legislation to implement. These cuts herald an extinction event for the criminal profession and the rights to access to justice. There is still time to try and avoid the damage these proposals will make. We need as a profession to stand together and not protect our own self interests. The proposals, together with the QASA proposals are designed to set Counsel against Solicitor. If we don’t stand together then we risk being written off as simply lobby groups. We need as a profession to highlight these proposals to the public; to let them know what is at risk, we need to show that the Government know the price of everything but the value of nothing.

Do not be fooled by the use of the word consultation. A consultation involves a dialogue, a discussion between interested parties, at the end of which you will hopefully reach an agreed way forward. This is not a consultation; a decision has already been made as to how the MOJ will proceed. What is being consulted on is the manner of the demise. The current process is a sop, a necessary delay in order to ensure there are no available challenges to the policies to be implemented.
If evidence is needed of this take a look at how the response questions are worded. There is no question asking whether PCT is an appropriate way forward, no questions seeking a viable alternative or whether cuts themselves are even necessary. In essence it’s akin to asking the chicken “Would you prefer Sage and Onion, or Lemon and Thyme?” Either way the chicken is going to be stuffed.

Consider also the recommendations contained within the Carter Review of Legal Aid in 1996. All of the primary recommendations with the exception of BVT and Single Case Fees have been implemented. It is these two proposals that form the basis of this consultation.

Although there are a number of worrying proposals within the document the biggest and the one that will have the greatest effect is PCT, or Price Competitive Tendering. That will mean providers bid against each other to provide advice at the police station, and representation for all litigation in the Magistrates and Crown Court at a fixed price per case. Inevitably the lowest bids in each area will be awarded a contract for a minimum period of three years, extendable to five.
The Government believe that market forces can be made to apply to anything from the bulk purchase of hammers to the provision of professional advice. The problem is buying a bulk load of hammers is quite a different proposition to the purchase of professional advice. Sometimes market forces simply cannot be left to decide how something is provided, and particularly when the Government are the purchaser.

More pertinently the Government don’t want market forces to decide how and at what price criminal legal aid is provided, hence the need for the Government to “rig” the market in the first place.

If pricing were left exclusively to the market then as a whole the price would go up, we would no longer work for the current pay rates as it does not reflect the cost of doing the work we do. We already work at a significantly lower rate than we used to and that we could charge.

So the Government need to set a price cap, a maximum amount of money they will pay for the services to be provided. They have set that cap at a rate 17.5% less than the current fee structure. This is to prevent the providers holding the Government hostage on price. So already providers have even less incentive to bid for the work. In order to make it worthwhile the second stage is to cap the number of providers in any given area and then guarantee those with a contract a certain percentage of the available work. What was a free market with anyone able to compete and offer their services is now a closed market with a price cap. The proposed system does not allow for growth, it does not allow for new entrants, it encourages stagnation and the slow inexorable demise of the independent profession.

At the present time there are approximately 1600 contracts for the provision of criminal legal aid, serviced at one end of the spectrum by sole practitioners working from the spare bedroom, to at the other end very large firms with multiple offices servicing large geographical areas. This means that the Legal Aid Agency have supplier relationships with each provider which creates paperwork and administration, which in turn costs money. Under the present system as long as the contract provider meets the necessary quality criteria and can fulfil contractual requirements then they are able to carry out publically funded work.

Quality criteria is important, it means on a most basic level that the person you see is being audited, that someone is happy with their ability to provide the advice and representation you need. More importantly reputational quality is in the current system a massively important benchmark. You may be able to fill forms out and pass tick box audits but if you are no good in court, give poor advice and achieve bad results due to lack of ability or commitment then who would instruct you? Conversely, if you are good at what you do, show commitment and understanding to your client and are able to provide a consistently excellent service then your reputation will increase and inevitably you will get more work. Clients will choose to come to you, and will avoid the others. This is where at present the market is deciding.

In the new regime there will be 400 contracts conducted by a lot less than 400 providers. There will be no sole practitioners, there will be no niche specialists; they will no longer be able to survive let alone be in a position to bid for a contract. Instead there will be large firms and in time national providers such as G4S, Serco et al. The High Street lawyer will no longer exist. I do not think that the large multi-national public service companies will come in on the first bid round. They will want to see how it all works out, and whether there will be a further reduction in supplier base. I do think they will come in, perhaps on the next contract when the Government introduce a full public defender service run by one of those companies, after all they could then operate a full cradle to grave service; investigated by them, represented by them at court and rehabilitated by them at a prison or a probation centre. The justice system as we know it will then truly be dead.

Smaller firms will be unable to bid due to constraints on budget, logistics and so forth and the cost of scaling up. Larger firms may not bid, as the bid price will not be worthwhile. Legal Aid partners at law firms have a hard enough time justifying their existence on the margins we currently operate; imagine taking that discussion to a share-holders meeting. More importantly is the restrictions the regime will have on the growth of a firm or provider. If you are guaranteed no more than a percentage of the work available in any given area then the only way to increase that percentage share would be for a further reduction in the number of suppliers. It’s something that simply cannot happen if there is to be true independence and avoid the unavoidable client conflicts. Further, you can’t rely on repeat business or recommendation. Cases will be allocated on a rota basis at the police station, own client ceases to exist.

As I mentioned above the need to provide quality advice and representation now is implicit in what we do. A client will never instruct us if we are no good at the job. In the proposed regime the issue of quality is a concern. Once a provider has a contract, they have it for three or five years. Whilst certain quality controls may have been tested initially where is the imperative to ensure they are upheld? After all the work can’t be given to someone else, there will be no-one. I have no doubt that I and my colleagues will continue to work as we do and provide the quality of service that is to be expected by our clients.

That doesn’t mean that quality will not fall, budgets need to be kept, and targets met, that is bound to place pressures on what is done, and large new corporate ABS providers may not operate to the same standard The Government is aware of this and it is mentioned in the impact assessments. As a lawyer doing criminal work now it is insulting to think that someone believes I do not give anything other than 100% effort and commitment to my job or that I would not continue to do so.
In order to guarantee a percentage share of the work available in any given geographical area the new proposals do away with “own client” work. No longer will a client be able to choose who represents them at the police station or at the court if they want publically funded legal aid. This is a huge move and one that fundamentally attacks the principles of access to justice. More importantly, when set against the stated aims of the proposals to introduce efficiencies and cost savings to the fund it makes absolutely no sense. Yet without doing away with client choice, the issue of price competitive tendering cannot exist.

A client at the police station will be allocated to a provider if they ask for a solicitor. The proposed basis of allocation gives some indication as to how ridiculous this measure is. The consultation asks whether the clients should be allocated on initials, month they were born, sequentially, or on a rota basis. What happens if the client simply wanders into the office, as they so often do now, how can the Government ensure that one provider only does their percentage share of work.

The reality is that many clients are regulars, or they know a regular, or they have a friend of a friend etc. They trust the lawyer they choose to represent them and to give them advice. In that way I am able to tell my client, and he will trust me and believe me, that the game is up and he should plead to the particular allegation he faces that day.

I also know which one of my clients have mental health issues, have an alcohol or drug dependence, have a particularly difficult home life. I am able to use this information in their best interests and because I know them and they trust me I can put this information to the court quickly and effectively. If Mr X meets four different lawyers in four different cases of shop theft within a space of a week then he will need to tell each one his life history, many clients are reluctant to give information and only do so after a period of time. He may receive a sentence that is not right and more importantly there will be four separate fees. Under the current regime it would be clear those four thefts in a series of offences but only one case and therefore only one fee at court.

I have worked hard to build my reputation, as have my colleagues. A good lawyer, trusted by his client will always do a job quicker and more effectively and a client is more likely to accept the hard straight forward advice that is sometimes needed. A relationship built on trust between a client and his solicitor means that there is less chance of a pointless trial, less chance of clogging the system and more chance that justice is not only done but seen to be done by both the client and the victim.

It is bad enough now to try and convince some clients picked up as “duty solicitor” that I am independent of the police. With others there is the belief that the “duty solicitor” is not a proper solicitor and they will use me just until they can contact their usual brief. Imagine how these clients will feel when the only solicitors attending the police station are “duty solicitors” allocated to them on hair colour.

Finally, on this point, “Access to justice should not be determined by your ability to pay…” the opening remark from the consultation document. How can this possibly be held to be true and be believed if only those who can afford to instruct a lawyer of their choice are able to do so?

This blog has concentrated on the issues facing solicitors and the consultation process. There are equally dramatic effects proposed to the Bar and further reductions in their remuneration rates which I won’t cover here simply because I do not want to make this as long as the consultation.

There is one striking proposal that I do want to comment on, the reduction of pay the same fee for a short trial as a guilty plea. This is a dangerous proposal as far as public perception is concerned, and frankly downright offensive to suggest that clients are advised to plead not guilty simply to increase income. I have never met a barrister yet who has advised my client to plead not guilty just to get a trial fee. Please take the time to consider the blogs, articles and press releases put out by the CBA.

For a very long time we as lawyers at all levels have made the system work with our goodwill and hard work for diminishing returns and yet we all turn up to work and continue to do the job. Why? The answer is simple; we truly believe that access to justice is so much more than an ability to pay, that every person has a right to the best possible representation and that cheap and “efficient” is rarely synonymous with value and commitment.

If you are a lawyer of any branch of the profession speak to your clients, let them know what is going on and how they can respond. The Government may procure your services but the client is the one who needs your services. Nobody likes the idea of spending public money on “criminals” until they are the one who find themselves in a police station at 3am and the only friendly face is the lawyer willing to listen.

Sign the petition, write to your MP, write to your Police and Crime Commissioner and respond to the consultation. We are not just a foolish, noisy minority…we provide a voice for all of those who can’t speak for themselves.

Beyond Reasonable Doubt….

article-0-143F3E13000005DC-742_468x286.jpg

s5 Public Order Act 1986

1 A person is guilty of an offence if he

(a) uses threatening, abusive, or insulting words or behaviour or disorderly behaviour

(b) displays any writing, sign or ostensible representation which is threatening, abusive or insulting

within the sight of a person likely to be caused harrassment, alarm or distress thereby

s31 Crime & Disorder Act 1998

1 A person is guilty of an offence under this section if he commits

(c) an offence under s5 Public Order Act

which is racially aggravated for the purpose of this section

s28 Crime & Disorder Act 1998

1 An offence is racially or religiously aggravated for the purposes of s31 if –

(a) at the time of the offence or immediately before or after doing so the offender demonstrates towards the victim of the offence hostility based on the victims membership (or perceived membership) of a racial or religious group

or

(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group

—————————————————————————————————————————————–

This week saw the trial of John Terry at Westminster Magistrates Court charged with a single allegation of using threatening, abusive or insulting words or behaviour or disorderly behaviour and that behaviour was racially aggravated. We all know what is was alleged that he said, I’m not going to repeat any of the language here, there’s no need whatsover. Suffice to say that during a football match it is alleged that he used racially abusive language towards another player.

In a country obsessed by the world of football; the game, the players and their action on and off a pitch it was always going to a trial that would attract a lot of media attention. Hours of television and radio coverage, pages and pages of print media devoted to the issue and pretty much everyone knew that it was a certainty that he would be found guilty wouldn’t he. You didn’t have to be an expert lip-reader to work out what he said captured from multiple angles in glorious HD. So, a five day trial conducted by highly qualified lawyers for both the prosecution and defence and presided over by a very experienced Judge was all just a waste of time.

Throughout the course of the trial there was speculation that the inevitable punishment that was coming to Terry, a fine of £2500, was ridiculously low and he should punished far more harshly. I saw comments in the press, and on my twitter feed suggesting prison, a ban from the game of football, doing work for the community in Brixton and the like. All forgetting or choosing to ignore the fact the Judge was bound to follow the law, sentencing guidelines and personal mitigation and the maximum penalty he could ever impose was a fine of £2500. They also forgot more importantly that he had yet to be found guilty.

Friday 13th, a portentous day no doubt for Mr Terry. Having reserved his judgement following the

closing submissions yesterday. The press gathered, the media hovered and waited expectantly for the guilty verdict to be handed down…

Except it didn’t come.

Howard Riddle the Senior District Judge who presided over the case found Mr Terry not guilty.

How? Why? It’s an outrage! Did the Judge not hear the evidence put before the court? Was he bunged, knobbled, got at?

The world of Twitter, always one step away from being a mob armed with a pitchfork went mad. Comments were made about it being a mistake, an injustice, an outrage, a green light for any player to racially abuse another player on the pitch. I suspect that the vast majority of the persons making a comment decrying the judgment passed down had not read it, or at least I hope that they had not read it. I hope that the people who made those comments were not lawyers, although I did see some.

So how did the Judge reach such an absurd decision.

Two things, evidence and the burden of proof.

Where a defendant has pleaded not guilty then the Crown Prosecution Service “…has to prove the whole of its case, the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent” Sims [1946] KB 531

The prosecution not only have to prove the whole of the case, they have to prove their case beyond reasonable doubt Ewing 77 Cr. App.R 47 CA. In other words “satisfied so they are sure” Walters v R [1969] 2 AC 26.

That meant that Riddle had to be certain not only that the defendant had said the words but and this is the very important bit, that he had meant the words to be abusive and insulting. If he was not sure about either of those elements of the offence then he could never find the defendant guilty.

What the Judge did find was that there was no doubt that Terry had said the words. Terry has always admitted that. What Terry denied and what the CPS failed to prove was that Terry had said the words intending them to be racially abusive and insulting. The Judge found that Terry evidence was credible and remained so when he was “…expertly and forcefully cross-examined…”, he found some of the other evidence far from compelling corroboration. He heard no direct evidence that anyone heard what Terry said or how it was said. He, in essence, did not hear enough evidence to make him sure that Terry had said the words intending them to be racially abusive or insulting.

Whatever you might think of Terry; whatever he might have done or not have done in his personal life was not on trial.

A trial is not conducted in the media, by vox pox, sound bites or by taking a straw poll in the pub. The evidence is put before a court and if the CPS can prove the case so that the tribunal are certain that all the elements are proven, the defendant will be found guilty. In the case of Terry he was found not guilty, the case was not proven and he walked from court an innocent man.

So before you all say, “yeah, but he’s guilty really” remember he was found not guilty by a court of law and comments, allegations and assertions to the contrary are simply wrong. The decision does not mean you can go around using the words and you will not be guilty of an offence. It means that in the context of the case Terry was not guilty of the offence.

Read the judgment of Howard Riddle here http://www.judiciary.gov.uk/media/judgments/2012/r-v-john-terry-judgment

Just one reason why telephone advice is not g

telephone-2

As a follow up to my last blog and in response to why just telephone advice can’t be given and in particular to the question well if he did it just admit it.

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 cafe 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 as to 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 previous 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 and I read it out for him at the start of the interview. 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 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 additional burden of a charge to deal with.

There are several points to make here about one case, on the face of it a seemingly simple case of assault.

If the changes set out in the Legal Aid and Sentencing of Offenders Bill are put into place, simple common assault is very likely to be taken out of the scope for face to face advice. Brian would have only ever received telephone advice. If the Government does not opt in to the EU directive on minimum standards of advice at the police station then the ability to reduce advice to telephone advice only is unfettered.

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.

I knew his history and knew his difficulties. Had he had telephone advice only on the first or second occasion he would not have spoken to the same advisor, he would not have spoken to me, even if he had asked for me by name, telephone advice being provided by three companies with contracts with the LSC.

They would have been unlikely to spend the time I did with him to get the information I did. The intercom system to the cells through which the calls are directed are cut off after six minutes anyway!

They would not have been able to draft a prepared statement, or read it out in interview. They would not have been able to make representations to the Custody Sgt at the end of the interview, to correct the officer who was factually correct. They would not have been able to reason with the Sgt or have been able to rely upon the good and sensible relationship I have spent time developing with him and his colleagues.

None of that would have happened and Brian would have been facing a charge in court. I was able to use my knowledge of my client, his circumstances and my working relationship with the police to prevent a possible injustice and more importantly save money for the public purse.

For the outlay of £150, Brian has no convictions. He will be able to continue to see Hazel and that means he remains stable and happy and does not push him off the rails where who knows what it might cost to put right. The cost of a court case has been avoided.

Your right to face to face legal advice is important. Make sure that you can exercise it in the future and let your MP know how you feel.  This is a really important issue.   Whilst the Govt have voted through the legislation that would allow means testing and the extension of telephone advice it will still need secondary legislation to implement.  It is not too late to make this issue more widely known.

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.