Archive for April, 2012

This internet thing is terribly clever. I am big brother. I know how many people have been on FTD, what they’ve looked at and when.

I am Theresa May, I know all your secrets. Apart from how you got yourself in the bag and locked it, can’t work that one out.

But anyway, this has led to a new obsession, online people watching. And the one thing I check, everyday, is where the visitors come from. Since I’ve started FTD, I’ve had visitors from all over the cyber world.

Top 5

So, in at number 1: The United Kingdom – no real shock.

Number 2: The United States

3.Australia

4. Canada

5. Cayman Islands

OK, maybe the Cayman Islands is quite surprising. But actually what surprises me most are the countries which follow after the Caymans. India, Bangladesh, Qatar and Zambia is number 6! Ahead of France!

Muse on my musings

Without being too existential… It’s really got me wondering why they come and read at all. The top 5 I get it, especially the US, I quite often write about there, but, Qatar? The Zambia?

Qatar is rich, they have oil. This is about all I know. I now know too they have a people trafficking problem, a slavery problem, allow freedom of religion but not public displays thereof and still stones people.

Zambia has one of the fastest growing economies in the world, knew that. Didn’t know that 70% of people there live below the poverty line. Apparently there is very little representation in the lower criminal courts, legal aid is scant and the poor and women in particular lack mechanisms to access the Courts. Other than that, I can’t find much more about the Court system there. And much less about criminal justice.

India, well I thought I knew quite a lot about there. A billion people, a growing economy, post-colonialism. I didn’t realise there had been attempts to undermine the independence of the judiciary and that arguments as to the appropriateness of the death penalty were still being had and were in the public eye as recently as March of this year.

So an appeal

I wonder then if I can persuade one or more people who visit FTD from those countries to drop me a line and a story. Looking at the top five countries on my visiting list, they’ve all got some clout, their combined clout is quite weighty indeed – so I’d like them to hear and read about things going on in these countries.

And when they write, I think you should consider too, if you’re lucky to live in one of my top 5. What would it be like to have a corrupt police or judiciary? What would it be like if women or the poor couldn’t access the court? What would it be like going to Court without a lawyer and facing punishment. Might sounds fanciful, but, LASPO? Legal Aid cuts? Winsor reforms? It’s possible…

So if you’re a junior junior barrister from Zambia get in touch.

Or  a copper from India.

Or a Magistrate from Qatar.

We need to read all about it.

FTD.

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I’ve just found out from Bystander’s blog that District Judge Phillips is to retire this year.

It had two instant effects on me:

1) Feel old

2) Feel sad

DJ Phillips sits in West London. When you’re first on your feet he’s one of the Judges that young lawyers get told about.

I feel old because to me he was one of the Judges I cut my teeth in front of. From shopliftings in the West End to serious offences I had to deal with the first hearing on, perhaps on a wet miserable Saturday morning.

I feel sad because I’m so fond of him. Our first encounter didn’t go well, I was representing someone with a drug addiction. I can’t remember what I said, it was mention of my client’s addiction, I said either, ‘drug problem’ or ‘abuses drugs’ – something similar to that. He snapped at me, told me to change my words, whatever he said made it clear to me that the Defendant was more than just a drug problem, but was a person with a horrid affliction.

But from that point on we got on. I walked into his court one morning instructed late and somebody else was on their feet, he interrupted them, ‘excuse me a moment, Mr FTD, it’s been too long since you’ve been in my court, good morning to you.’ It was a kind nod in my direction.

And there’s nothing better than this, one day I walked in, my client looked very sheepish indeed, he was a young lad, ‘Right then X, you’ve got Mr FTD I see, good choice, but I’ve telephoned your Mum, you’ve been giving her some jip.’ His personalised approach made a massive difference, even Defendants were fond of him. I have no doubt that his approach has rehabilitated a number of young people who otherwise would have found themselves as repeat customers of the criminal justice system.

To me, I’m sad to see him go as he’s always treated lawyers like humans and clients too.

Bystander wrote that he was concerned by ‘idiosyncratic’ decisions of District Judges, when the lay magistracy felt constrained by guidelines. (You can read it here, http://magistratesblog.blogspot.co.uk/2012/04/moving-on.html )

My message is this, look past the thick glass of the dock and look at the human inside. And don’t assume all lawyers are pinstriped wallet fillers.

And Magistrates remember, guidelines are to guide you, not bind you – guidelines not tramlines.

Finally, best of luck with your retirement Sir, if I make a full innings in my profession then the first chapter of my story is dedicated to you.

FTD.

Happy St George’s day my English brothers and sisters.

Every St George’s day my Grandad could be found with a red rose in his button hole. Why? Because he was proud to be English. Not proud of the soil under our feet, or our ‘ethnicity’ but because of our values and history.

English history, involves, believe it or not liberalism. And my Grandad wasn’t like me, he didn’t go to Court and argue about human rights, to my knowledge he was never in a protest but I know he believed.

The most obvious example was when I was working in the US. I was part of the team defending a black man in Mississippi, facing the death penalty for raping and murdering a teenage boy. A huge distance geographically and socially away from my Grandad the retired master plasterer from Sheffield.

Turned out that my client was eventually released before trial, as he was clearly innocent but that is beside the point. Because, from the other side of the world my Grandparents sent him messages of love and support.

Why? Because a belief in liberty and equality is very English.

Liberalism is in your blood, honest guv

Our forefathers have had plenty of dark moments: slavery, the Peterloo Massacre, Bloody Sunday, Swamp 82, the murder of Stephen Lawrence, the Criminal Justice Act 2003…. there’s a long list.

But, liberalism was born in Britain. In England. In Somerset. With John Locke.  Followed up by Thomas Gordon It was entrenched with the Glorious Revolution. It gave us the abolition of slavery and universal suffrage. It was how we recovered from the Great Depression. It was why we fought the Nazis.

And what does being a liberal mean?

I’m a proud liberal, what does that mean I believe:

That the Government only rules with our consent.

The Government ought not interfere with me or my property.

We are all equal under the eyes of the law.

That I tolerate and protect people having different views to me.

That we should own the corporations that they cannot own us.

Terrible things? Things perhaps you agree with?

Liberal is a dirty word

Some people now consider the word liberal a dirty word. Some people use it as an insult. Some people blame it for the ills of English society.

Why? I think there are three reasons,

1) The liberal democrats.A political party has hijacked the word, ‘liberal’. People presume that if you say you’re a liberal, you vote liberal democrat. As such you are associated with all the policies, good and bad of that party. I have no doubt that most political parties have some liberal aspect, afterall we live in a liberal democracy? Why, because we can vote, we can express our views, we can protest and so on.

So just because I’m a liberal doesn’t mean I’ll be voting for Brian Paddick at the Mayoral Election, or I believe in the coalition, or anything like that.

2) The liberals you hear. Linked to the above is the way in which other parties have used the term liberal. The left from Karl Marx onwards have used it as a term for people who don’t care about the poor, or social cohesion. They’ve used it as a way of attacking society, saying that the ‘liberals’ care only for themselves and accumulating individual wealth. And, on the right, ‘liberals’ are to blame for rising crime rates, soft justice and it is liberals who wreck traditions by allowing pluralism and indeed diversity.

Look above at what I’ve said. Am I to blame for rising crime. Do I not care for the poor?

3) The big one. We take for granted that we’re free. I think we’ve quite frankly forgotten that we live in a free society. That’s an amazing thing. We can vote for our Government. We can criticise them, in writing, on twitter, on facebook, on blogs, in newspapers, on the streets, to their faces, in songs, in banners.

We’re entitled not to be imprisoned arbitrarily. It’s illegal to torture us. The Government has to prove I’m guilty before they punish me.

The Government can’t just take my property.

Your Mother and Sister won’t be stoned if they commit adultery, they’re allowed to vote, they can wear what they want.

I can buy a share in a company which is publicly sold. But, just because I have 100 shares doesn’t mean I have more of a vote in the Government than someone who has no shares.

Again, history

Liberalism was born in England before the civil war, it was about limiting the right of Kings. The French went another step. Then of the course the Americans cast off British policies which limited their freedoms.

In World War II, the Nazis spread fascism throughout Europe. They limited liberty and freedom. We fought for that liberty and were proud.

Churchill (the Conservative) said: ‘all the great things are simple, and many can be expressed in a single word: freedom, justice, honour, duty, mercy, hope.’

So what it means to me to be an Englishman

As a English man I am a liberal. It means that I will defend the rights of others to have their view heard. To date that has meant, I have represented members of the EDL, anarchists, numerous members of Occupy.

Have represented incredibly rich businessmen and penniless refugees.

Clients have ranged from murderers to the proprietor of a noisy gay bar.

And look, please don’t miss this, because it says what is brilliant about our society. The police, often considered to be contrary to, or oppressing liberal values and some of them condemn us wishy-washy liberals, are exercising their right to protest on 10 May 2012, a very liberal right. And if any of them get nicked I’ll happily take the brief and defend them with the same ferocity I would any other client.

So – own it. Be that liberal.
Even the bard was a liberal:
This liberty is all that I request.
The Taming of the Shrew: II, i

The year is 2028 and the last fifteen years have seen more change in English criminal justice than the 150 years before it.

The rapid change began toward the end of 2012. The Winsor report was on coffee tables across Westminster. The Police Federation march had put the rank and file officers in the cross hairs of the coalition.

Meanwhile, after 4% pay cuts across the Criminal Bar, a  number of mid ranking barristers have found themselves without employment as the CPS have restricted who can prosecute on the basis of how barristers fill out a form. A number of cases have collapsed as the jilted barristers refuse to prosecute.

And whilst prison numbers have reduced, the Government are not looking to share the scarce resources of the prison service, instead, to target and remove another prison establishment.

Double dip

The default of Greece in 2013 led to a Europe wide recession.  Germany, France and the UK as a result had to restructure public finances to keep the European project alive.

Overnight there is a hole in the public finances.  Defence recruitment is frozen. Public sector pay is subject to a wide review. University fees go beyond £10k. Fare subsidies are cut and capital transport projects are delayed. Again, nobody is prepared to consider waste in the NHS or rationing the provision.

The Government have passed early release legislation, a number of prisoners are released early. There is only the support of charities to help them.

Whilst in Eastern Europe organised crime has used its free movement rights across Europe. Multi national, cross border crime is now the norm.

Save money, save it quick

The need to save money quickly caused the Government to look at whole sale reform in crime and criminal justice.

By 2018 every category B and C prison was in the control of private companies, there is no focus on rehabilitation at all. The focus of these establishments is to hold inmates as cheaply as possible. The Prison and Probation Ombudsman was incapacitated by the number of complaints, in particular as regard to use of force. The majority of the open, category D prisons have been closed, the remaining two which are open are run for those coming to the end of life and IPP sentences, they are contracted to charities. Whilst the Government pays for the room and board of the prisoners, it is for the charities to fund rehabilitative and resettlement opportunities.

The recession has had a wide spread impact on crime. Most organised crime has now got a European dimension. In 2016, the European laws with regard to extradition were abolished. All over Europe savings were made in domestic legal budgets. Instead of domestic police forces dealing with extradition an European Marshall Service was created. The European Marshalls have jurisdiction throughout the EU and can arrest anybody to whom a warrant applies.

The police have taken the Winsor report to a new extreme. Entry requirements for officers is high indeed. Most officers are now taken directly at the age of 21 from Russell Group Universities. The low entry pay being offset against the job security that policing officers. This lack of diversity amongst police recruitment has led some to conclude that the police are no longer representative of the public.

In any event, the general public had little contact with the actual police. Instead, the obvious saving was to increase the power, but not the pay nor the training of PCSOs. In 2018, the Police Reform Act gave PCSOs all the powers that police constables have, the only difference being that they only exercised their powers whilst on duty, in full uniform and in their force areas. Despite the Police Federation warning that it might lead to lower standards of policing, UNISON representing the PCSOs demanded the powers and access to weaponry. There was no entry requirements for PCSOs and they could be recruited from the age of 16.

The Labour Party, receiving funding from UNISON could not oppose the new powers to the PCSOs.

By 2019, the public complained that the police were ruder than ever, violent and unresponsive. Crimes went uninvestigated. The IPCC were buckling under pressure and police forces were having to build contingency funds for litigation.

Looking to impress

In 2019, David Cameron was heading toward the next election, the end of his second term. Facing rising crime rates and heavy criticism from the public as to policing, the Conservative government enacted the Criminal Justice Reform Act 2019.

Overnight the Magistrates’ Court was renamed the District Criminal Court. The Magistrates were abolished. Instead, their legal advisors were overnight promoted to District Judges. The conviction rate in the lower court went up overnight. Money was saved to put toward popular public projects.

Appeals from the District Criminal Court to the Crown Court and High Court ended. Instead, appeals were sent to the Senior District Judges, mostly the District Judges who had been in place before the change.

In the District Criminal Court the law was changed with regard to representation. Barristers and solicitors continued to appear. But, also trainee solicitors were allowed to appear in the Court. Additionally, police station representatives with no formal legal qualification and CPS caseworkers were now allowed to do summary trials.

By the end of 2019 the public complained that the Courts were a mess. Victims complained of improper treatment and witnesses went either unquestioned or were subjected to clumsy questioning. The Law Society and the Bar Council complain loudly that justice cannot be done in these new criminal courts. The Government resist any suggestion that these District Criminal Courts ought to be televised.

The Government rejoice that they have increased the success rate of prosecutions whilst saving costs.

The final chapter of the Act was to remove the application of the Human Rights Act to any person or situation involved in the criminal justice system, prompting widespread protests from liberties campaigners and a crisis in the Higher Courts.

Third term

The libertarians may not have liked what was said about the Human Rights Act, but the rhetoric of the right wing electronic and visual press helped get the Conservatives a third term. The crime problem was supposedly solved with the increase in successful prosecutions and money was being saved to purchase shiny things.

And in 2020 huge capital investment was provided by Government into transport, energy security, new technological industry and the development of small enterprise.

Part of this was funded by the wider world economic recovery, otherwise by savings from elsewhere.

The big promise to the public was to put local power back to local people. That though had to be offset about the reality that a closer Europe would require European solutions.

The new reality. PSCOs have been doing low level, local policing now for several years, the public though want the police back. The solution? Every local authority becomes responsible for its own day-to-day policing. They can choose from a number of providers, Serco, G4S etc.

The remaining police force is reshaped and the numbers decreased. There is now one national domestic police force, responsible for policing serious offences.

To cope with European Union wide criminal offending the European Marshall Service is extended and expanded. In 2021, the European Union Crime Agency was formed. Their remit to investigate ‘Federal Crime’. A new multi million £ court house is opened in London, Birmingham and Cardiff.

HMP Wandsworth is taken away from G4S control and becomes EUP Wandsworth. It holds those who have committed Federal offences.

Despite British objections all EUCA Officers are routinely armed with Austrian made glock semi-automatic pistols. The proliferation of weapons throughout Europe, in particular of old soviet and adopted pistols, means that the Government decide to routinely arm all members of the national police force. Webley & Scott produce side arms for the first time since the 1970s. A signficant number of officers are sacked when they refuse to collect their weapons.

Just outside of Temple

There is a large stone building with oak doors, brass door knockers and black iron railings. It looks more 1925 than 2025.

The building inside was tidy, but modest. In three open plan offices, INQUEST, the Howard League and the Prisoners’ Advice Service go about their business. They survived the recession and legal aid cuts by sharing a building and some other costs.

On the floors above is one of the few barristers’ chambers which survived the reforms.

There are five criminal barristers’ chambers left in London. And even then, criminal law is not their main source of work. Of those chambers, two will only accept work on a private fee paying basis. The other two only represent the Government and the private companies involved in providing ‘criminal justice.’

The chambers FTD is a member at is the one outside of Temple. FTD’s practice is mostly paid for by wealthy individuals, sometimes solicitors firms are able to persuade their paymasters to  get in an independent barrister, but it is in less than 5% of cases. Nobody junior in chambers just has a crime practice. Actions against the police are booming, the untrained PSCOs with greater powers were a liability, the privatised PCSOs are worse.

A number of members of chambers work in the International Criminal Court and in the European Federal Criminal Court. It is very rare indeed they would get involved in a normal criminal offence.

Barristers are now instructed not only by solicitors in their own jurisdiction but others in Europe too.

In 2025, solicitors are in a recruitment crisis. National firms of solicitors won all the contracts to provide criminal defence under legal aid, they squeezed and squeezed each other to do it as cheap as possible under the ‘Best Value Tendering’ scheme which has crippled the profession for the last 10 years. The result is every lawyer has a huge caseload and little support. There has been little to attract high quality candidates into the criminal law as the money at the bottom end is so bad.

People mortgage their homes and sell their possessions if accused of a criminal offence to pay for proper representation.

A number of Judges and retired lawyers are making it clear in their media that they think there are huge numbers of miscarriages of justice. City law firms are taking on criminal appeals pro bono as obvious wrongful convictions flourish.

Another video was released of privatised community police abusing members of the public. One 17 year old private company police support officer was seen racially abusing a group of youths. Another has been indicted for extortion. The English national police force are having to spend large amounts of time investigating their private company colleagues.

Prison is having next to no effect on re-offending rates and crime is on the rise again this year.

Tomorrow, the Sun on Sunday will launch its return to justice campaign, calling for improvement of legal aid lawyers and an entirely public run police force.

FTD is appearing on the Sky E News bulletin to remind the Government that they were warned of the risks many years before.

Drip drip

I don’t mean to be a drip.

But, lawyers who are not properly trained and not properly resourced will not succeed in securing justice. Graduates from top universities will not be attracted to legally aided law if they see it as being unstable and offering no financial reward whatsoever. The slow drip out of the legal aid budget (and these annual 4% gashes) will kill quality. BVT would end it all together.

Would you be comfortable to live in a society where only the rich could access the best criminal defence?

Privatising police forces will lead to injustice, not only in employment terms, but to persons who are policed. Again, reduce training and entry standards you will reduce service.

Would you be comfortable to live in a society where you are policed for profit not protection?

And we ought to recognise that with the continuation of the European project there will come a time that we need to have a serious consideration as to the lines of jurisdiction. The more integrated Europe becomes more integrated crime becomes. Is anyone being honest about the prospect of European criminal justice?

Honesty too must be applied to our policy of imprisonment. If you cut funds to prison the frills go first. The frills are rehabilitation. Without rehabilitation you are merely locking people up in a public funded barn.

Criminal justice cannot be privatised, small slices lead to large injustices in the long run. If you don’t pay for proper criminal lawyers then you will never achieve criminal justice.

Is my vision of 2025 so unrealistic?

FTD

Yesterday, I wrote about how the Met weren’t truly to fault for their own racist elements. Why? Because British society at large has racist elements and the structures which enforce the law lack the cultural knowledge to properly deal with racism.

The conclusion, we’re all at fault for racism.

And while I’m insulting us all, we’re a bunch of homophobes.

Pink public life

So while we’re recruiting secret racists to public positions, we’ll have a fair number of homophobes and a fair number of homosexuals.

Homophobia makes me mad, mostly because two of my best friends at school were gay. I knew they were gay and they were never able to say they were gay until they had left.

The school institution didn’t encourage them to show their own sexuality.

Then onto Oxford, probably one of the most gay friendly Universities in the country. Turns out, one of my best friends there too, didn’t feel he was able to come out.

It shouldn’t be so hard for people to be honest.

Closed society

I imagine, and wait to be corrected, that the Prison Service is the most LGBT friendly of the whole of the public sector. Prison officers proudly wear rainbow badges and on noticeboards all over there are LGBT related notices for prison officers and prisoners. How to make a complaint, who to talk to and so on.

If there’s a relative openness in the Prison Service then why can it not be replicated in other public services?

Well there seems no reason why not. I accept it is probably easier in a prison setting as they’re very closed and controlled societies. But, as I’ve experienced, they’re quite often too small societies where aggression and violence permeate.

Homophobic violence

I was reading Ethan Bourne’s article ‘Why can’t gay couples feel safe enough to hold hands everywhere in the UK?’. The answer he comes to is part of it is self-imposed, part of it is wider society.

I don’t think it’s self-imposed at all, unless you think self-preservation is a reason to justify such a step.

Again, from my personal experience. At 6th form, (and I was at a relatively liberal, middle class, mixed school), the one openly gay couple in school had the shit kicked out of them. No real action was taken and for the sake of self-preservation the two lads were told to tone it down.

Then in the university holidays, one of my best friends got gay bashed and robbed and I witnessed somebody else I vaguely knew being beaten up for being gay.

And when I witnessed that,oh yes, the police acted. Because there stood, FTD, Oxford law student, established gobshite, rampant liberal, ‘I say officer…’ and there followed me round up the witnesses and provide them all to the police.

And again, when we were up at Oxford we came across a couple of lads getting a licking one night, chased off their attackers, but they didn’t want to make a complaint, talk to the police or go to Court.

How do we make criminal justice more gay friendly?

Above @ethanbourneuk ‘s article on the Pink Times, the IPCC were advertising for a new commissioner. That’s certainly a move in the right direction. I don’t think though it would encourage more gay people to report homophobic crime.

With regard to the judiciary, they’re clearly an important element in encouraging inclusion. March of this year, California asked all its judges to complete a survey as to whether they were gay or straight, bi, trans. They didn’t do it as part of some sort of homo inquisition, but, instead to show the general population that their judiciary were to a degree representative. And I don’t think it would hurt doing something here either.

The Magistracy? Well, I simply reproduce this note of a Stonewall JP:

I applied to be a magistrate to put something back into my community.
 
The application process was rigorous (for good reason) and I was worried that the persistent questions about ‘anything in my background that might embarrass the bench’ were code for ‘Are you gay?’.  I need not have worried as I soon discovered that this was a standard question for everyone.
 
I’ve been sitting in court for over three years now and am looking forward to starting my training as a Chair.  I’ve never really made anything of being gay but nor have I ever felt the need to hide my sexuality.  My partner came to my ‘swearing in’ and chatted to the partners of my fellow new magistrates – we were there as a couple just like anyone else.  I have encountered inappropriate comments from others on the bench (but no more than elsewhere in life) but if it happens I just address it there and then.
 
As well as my regular sittings in court I’ve taken part in Magistrates in the Community, making presentations at local schools about my role.
 
I’d encourage anyone with a desire for public service to consider becoming a magistrate – but particularly those under 30.  At 31, I’m one of very few ‘youngsters’ on my bench!
 

As for the police? I don’t know what the problem is with victims of gay violence and the police. I’d be interested to hear a perspective from either side.

In terms of uniform, I’m not sure whether cops are allowed the flexibility of prison officers, in terms of pin badges and so on. They all went through a ‘help the heroes’phase.  If they are gay, I don’t know whether they are allowed to wear a rainbow pin? I don’t know if they would? As said – be interested to know a police insight in this.

And the bar/lawyers? Well you’ve heard, Oxford is a gay friendly university. The Bar is full of Oxbridge grads, so some gay barristers are out there. One thing which is notable though, is that whilst my gay solicitor mates are forever going to gay solicitor drinks etc, I haven’t heard of an equivalent for the Bar.

Walk down my street holding hands

The police, lawyers and judges are the only ones who can guarantee that Ethan and his partner can walk down the street safely holding hands. The fact that there are places where he can’t do so ought to be laughable.

What annoys me more, is that a writer in the Pink Times  has accepted that he may not be able to hold hands with his partner everywhere today. No, I’m sorry, there should not be a slow change, there should be a rapid one.

All of the players in the criminal justice system need to get pink friendly and quick.

FTD

The last six days have seen the Metropolitan Police under attack, from the media, from Parliament and from their own brass. The reason? Racism. Or allegations thereof.

The BBC especially have put their extra special shocked faces on. But, how on earth can there be racism in the Met post the Macpherson report? This is 2012, nobody is racist anymore.

Toss. British society has racist elements. Police officers are recruited from British society. As such, there’s always the risk you’re recruiting a racist. It goes in everything, football, the Arts, on university campuses, in bars at the Bar.

Racism was not fixed over night with Macpherson and it’s stupid to pretend otherwise.

I’ve always imagined that the Prison Service and the British Military were more susceptible to racism than the police for a variety of reasons. But, both of those have accepted that racism was a problem and have taken steps to stamp it out.

If one makes an allegation of racism in a prison or in a military institution they receive specialist investigation. Although I have no doubt there are still failings in both institutions, I think they’re certainly more honest to themselves.

And they have to be, they don’t have the scrutiny of the public. People can’t spot what they’re upto on the streets, or overhear things. The army isn’t on the streets of London and the Prison Service don’t deal with road traffic incidents.

Being a public service which are truly in the public eye, we are to blame for continued police racism. And some of us are more to blame than others.

Defence lawyers

The criminal justice system is one of the biggest forms of scrutiny that the police face. Much more so than the complaints system or the civil/administrative court.

And on the most part it is for the defence to scrutinise what the police have done in a particular case. When I defend, I’m dogged, particularly when there have been avenues of investigation which haven’t been properly investigated. As too will I take points when evidence has obtained in less than proper circumstances.

But like a lot of other briefs, there’s a line of defence which makes me shudder. ‘They were racist.’ There’s been many a client who has said it to me. And once said and once part of the defence it’s my job to follow that instruction.

That doesn’t mean though that it’ll necessarily even be mentioned in Court. Why? Well sometimes it may not even be relevant. Other times we may advise our clients not to raise it.

Why on earth would you not raise a police officer being racist? One problem is the BBC effect. There has been a degree of post-Macpherson social conditioning that racism is a completely shocking thing and never happens, despite the fact is completely contrary to the reality of wider society.

And it requires a lot of bravery to bring racism into a case, for two further reasons:

The Magistrates

Of my Crown Court trials, racism only has ever come into one, and that wasn’t police racism.

Racism is often a Magistrates’ Court type of issue. A police officer was racist to me so I pushed them away from me. I swore at the officer as they used inappropriate words. I restrained the officer as they acted in a way which offended my religion and so on.

But one of the reasons we have to be so careful about ‘racism’ based defences, it because of the forum. I do not know a single black District Judge. It is incredibly rare that there is a black magistrate on a trial bench.

Does it matter? Yes, of course it matters, the point of magistrates is shared experience. If a section of the community is completely under represented then the Magistracy cannot access that element of shared experience. And I’m sorry to say but in London, being exposed to racist police officers is part of the shared experience of many minorities.

So why do we have to advise our clients not to raise a ‘racism’ defence? Because the Magistrates who hear the cases lack experience of the cultural reality of racism and therefore are less likely to believe defences which have a racial aspect.

And you have to think what type of person the Magistracy attracts. Some Magistrates are incredibly fair, in particular, the author of http://magistratesblog.blogspot.co.uk/ Bystander. I am told (as I don’t know who he is) that I came before him a lot as a second six pupil, and if it’s who I think it is, he is incredibly fair indeed, he really took the oath to heart.

But others, some Magistrates are people who want to maintain order in their communities, their proclivity will always be to believe the police. And I’m sorry to say, but Magistrates are still too old, white and middle class (even some who match that description are some of my favourites!).

So defence lawyers can be blamed for police racism.

Magistrates can be blamed for it too.

And so can the draftsman.

Bad character

Within the eyes of the law, being racist is reprehensible behaviour. So if you accuse a police officer of being so, you risk all of your character going in under the bad character provisions.

This means?

If your client has previous convictions and he gets you, his brief, to accuse the cop of being racist, the convictions are likely to go before the magistrates/jury.

And that will always be a killer.

So we can’t blame entirely the police themselves for the racism that remains.

Society still has racist elements.

Defence lawyers will not expose racism as it is not necessarily in their tactical interest.

Until Magistrates are more diverse, racism will not be explored in the Courts. And until bad character rules are reformed, nobody who has been in trouble before can afford to make the accusation.

You can’t entirely blame the Met themselves for racism, when the system is set up in such a way it allows it to thrive.

FTD