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.