Archive for the ‘Barrister’ Category

Excuse the geek factor for a moment, but when Keir Starmer was appointed DPP I was excited. Excited as I thought it meant a complete change in the country’s prosecution policy. Less resources would be wasted on hopeless trials, there’d be less criminalisation of protesters, there’d be more prosecutions around misfeasance and there would be less of a pursuit of ancillary orders like ASBOs, restraining orders, control orders etc…

What a huge disappointment.

I’m not sure what disappointed me more, his initial decision and subsequent weak looking flip-flop on the prosecution of PC Simon Harwood, or the painful waste of money that was the ‘Twitter Joke Trial’ and the three appeals thereafter…

Now, out of office, all we hear, is his name and then the word closely there associated is, ‘victim’. And, the second word closely associated to him is, ‘Labour’. And in this strange dance out of DPP’s offices and back to private practice, the message (being pumped by someone, I presume in One Brewer’s Green) is that Keir Starmer will be standing for election, as a Labour candidate and he is going to be a champion of victim’s rights.

On the face of it, the cynics will grin a bit, and mentally note how terribly populist it all seems. As someone with a, ‘rights’ based practice, I thought I’d read what appeared to be the flag ship document from Starmer on the subject, in the Guardian, in ‘Comment is Free’.

http://www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-system-victims-law-public-prosecutions

There’s the link…

… and read it a couple of times. I actually read it three times. And I genuinely wonder if he has written it. Not because of the contents but the lack thereof. The essential point you’ll have all gathered from it is, ‘we need a victim’s law’ – but then there is absolutely nothing in the article that says what should be in it, the comments below say it all:

“So – are you proposing the most major shift ever in UK law to move away from the adversarial system (in all types of cases, not just cases where sex and abuse is involved)?”

“What system would you suggest?

One without lawyers? Just draw straws – short and your guilty.”

“Having taken the trouble to set out what you see as major flaws in the handling of cases of alleged abuse, all you are able to suggest by way of remedy is a “Victims’ Law” the contents of which you make no attempt to describe and a rebranding of the criminal justice system to incorporate the already discredited bureaucratic platitude “service”.

These are serious issues. Can I suggest you come back when you have given the matter more thought.”

And it goes on… and on….

The whole article is two dimensional. It’s meaningless.

Once you get over the fact that he hasn’t suggested what will be in his ‘victim’s law’, you then move to his justification of it. Most of it seems to be based on the fact that a number of victims told the CPS to quite literally, ‘fuck off’ – Starmer does not blame this on the CPS or the police, instead he blames it on our judicial system, and in particular the adversarial system.

The truth about the adversarial system

It’s easy to blame the adversarial system. It’s easy because it’s the dramatic bit, it’s the bit, where somebody stands up and suggests to the witness they’re mistaken, or they’re telling lies. But very rare is it dramatic like it is on TV, quite often in fact, when we call stand up and call someone a liar, we do so, because we know so. How do we know, generally, a piece of physical evidence, CCTV, a neutral witness and so forth.

It’s not nice being called a liar.

It’s certainly not being nice being caught as a liar.

The reason the CPS were told to fuck off…

May well be because a particular witness was caught in a lie. Every criminal barrister can tell you at least 3 or 4 stories, where the CCTV of an incident (which of course the CPS have!) has completely gone against a witness and their version of events.

Of course, there are other times where witnesses and victims don’t want to give evidence. There’s nothing quite as horrible as seeing a woman being frog marched into Court by coppers to simply cry in the witness box for 20 minutes. That woman (or indeed man) may well have written three or four witness statements, they might all be different, a couple of them may even say they don’t support the proceedings.

It is so horribly nannying, to say we’re going to put victims at the centre of criminal justice but at the same time say they don’t have any right to choose. It irks me so. You either have an impersonal system where by the state is treated almost like the victim, or you have a personal system where it is almost as if the victim directs the prosecution. But if you have the latter you have to let the victim choose, not just presume it’s right for them and sally forth on a prosecution against their will.

Oh, and if you do decide you’re going to prosecute someone against a victim’s will, then at least have the dignity and respect to prosecute the right offence. Strangulation of a woman, throwing a woman down the stairs, breaking her bones, breaking the skin, making her bleed, is not a battery, it’s an offence triable on indictment with a commensurate sentence.

And when you prosecute an offence, could you have the decency to do as follows:

– Send a lawyer with an up to date practitioners’ text. The law has changed since 2009.

– Send a lawyer who has had the papers for more than 30 minutes before the trial starts.

– Send a lawyer who has a level of advocacy whereby at the very least they can compete with a second six pupil*

– It it’s in the Crown Court, pick a barrister and stick with them

– Don’t reduce them to a X or tick system

– Be certain to follow the barrister’s advice on charge and on evidence.

– Be courteous and actually reply to the police officer in charge’s emails

– Don’t lose evidence

– Don’t lose witnesses

– Don’t lose simple cases

(Can I return to the ‘*’ point for a minute. One of the big things to improve CPS advocacy was to send round lecterns for CPS advocates in all Magistrates’ Courts. Fundamentally that makes no difference. Can I say why the standard of a second six pupil is the minimum (( and it’s not solicitor v barrister)) – it’s this: a second six pupil has had the following training: a year in a classroom learning about and doing advocacy exercises, 6 months following around and watch a senior barrister and their advocacy, has completed a course run by senior barristers and Judges as to their advocacy. CPS lose cases because a lot of their lawyers are not advocates.).

Don’t take an obvious point

Labour are taking the obvious point that it’s tough for victims of violent and sexual crime to give evidence. I quite agree. But, a 2D, half arsed, ‘victim’s law’ is not the answer.

And it’s horribly transparent, and disappointing, that you’d use an ex DPP ‘from the other side’ to try and push the point. It looks desperate.

The Criminal Justice Act 2003, did all sorts of damage to the English justice system, it was not properly drafted and has taken 10 years to be litigated and re-litigated. Please do not vote for a ‘Victim’s Law’ – it’s hollow and crass. Vote for a political party that will take the CPS, and take them to task rather than blaming a perfectly good, world replicated, safety conscious adversarial system.

If you’re looking for a tempered, adult review of the new Injunction to Prevent Nuisance and Annoyance (IPNA), then please, check out this most excellent post on the Justice Gap by Penelope Gibbs

http://thejusticegap.com/2013/12/new-asbos-attack-civil-liberties-young/

However, if you’re looking for an irreverent, bordering on childish review of the IPNA, then do read on…

The ABSI – anti social behaviour injunction – is soon to be laid to rest. As is it’s famous brother the ASBO – the anti social behaviour order. And instead is to be replaced with a variety of exciting sounding orders, Community Protection Orders, CRASBOs, Public Spaces Protection Orders. The list is endless.

Ladies and gentlemen, you are going to be clad in protective orders when you leave your home.

And the best of these orders is the IPNA.

Ah yes, for no longer will you be caused nuisance or annoyed, and if you are? To the County Court, an injunction, and the threat of contempt of Court for those who dare break their IPNA.

What’s that I hear you say?

We’ve heard it all before

The ASBO was supposed to prevent people leaving their dog mess and children playing football on non-FA approved premises. But, it failed. Children are still seen on the streets. The elderly are asked to donate to charity by people wearing onesies. Just this very morning Mrs Jones from number 42 was asking for signatures on her petition about the leisure centre, again.

How will these fiends be stopped?

Never fear, Theresa May is here! They will be stopped with the IPNA.

You see, the ASBO, it’s too liberal. The most recent Labour Government (known for their mild stance on criminal justice and unswerving commitment to civil liberty) were too soft.

For an ASBO one had to prove that a person’s conduct was likely to cause ‘harassment, alarm of distress.’ Forget that, too difficult, too high a threshold. The coalition laugh at that puny test. The IPNA, it’s new, it’s streamlined, it’s easy to get an order.

Now! The test for the IPNA is:  is conduct “capable of causing nuisance or annoyance to any person”

Ah yes, we’re getting somewhere. Mrs Jones, you’re going to get served, you annoy me everyday with that damn leisure centre petition.

Also, big problem with ASBOS was the standard of proof. You see, you had to prove, to the criminal standard, i.e beyond reasonable doubt that someone had committed anti-social behaviour. Yawn. As an Oxford jury once said: ‘we’re sure there’s a doubt, we’re just deciding whether it’s a reasonable one.’ ASBOs required evidence to make the Court imposing it, ‘sure’ that a person committed ASB. It’s such a high threshold, and requires things like evidence.

Never fear! IPNA IS HERE. That boring, feisty old high standard of proof has gone. The coalition have brought is crashing down.

Low, low, thresholds of proof

Forget proving it beyond reasonable doubt, now, just on the balance of probabilities. Is it more likely than not that Mrs Jones annoys me? HELLO.Bang

And don’t you worry, all those pesky lawyers won’t get in the way. The coalition are taking IPNAs and planting them firmly in the County Court, no duty solicitor to cry to when you breach your IPNA, no no, you’re going to JAIL. No legal aid, no liberals are going to stop these. It will be Judges who decide who gets an order, proper ones too, no Magistrates messing things around.  (oh, apart from in the case of those under 18 – that goes to the Youth Court – weird huh – never mind. And appeal from the Youth Court is to the Crown Court – even weirder)

Bang and the dirt is gone

He’s making a list, he’s checking it twice, he’s going to decide arbitrarily who is naughty or nice

It’s actually, amazing, an annoyance free life. I’ve been reading the Bill, section 1, IPNAs can be made against anybody 10 or over. Not too shabby, that’ll get the kids playing football at the end of the street.

Now with all this good news, there has to be some bad. And that’s section 4 of the Act. You see, private individuals can’t apply for IPNAs. Shame huh?

It’s fabulous, the police will be able to get injunctions against those smelly protestors and the council against those dog walkers on the green.

And it’ll just be so easy. That’s the best thing.

But it’s still broad, all you’ve got to do is get someone to listen, local authority, housing authority, police, TFL, even the environment agency. Don’t worry, I’ll write to them all about Mrs Jones from number 42.

Get your shares in G4S now, we’re gunna need more prisons

In 2010, Theresa May complained that ASBOs didn’t work, in particular they put people (especially young people) on a ‘conveyor belt’ to prison. Looking at this Bill, it’s just a licence for two things: (1) local authorities to answer banal, low level complaints with complete overkill, (2)  the police to injunct/enjoin people from doing annoying but perfectly lawful things: i.e peaceful protest.

The net result is that your liberty is threatened again.

And when it is threatened it seems highly unlikely that there will be any legal aid there to provide for a lawyer.

Contact your MP now.

FTD

 

 

It’s now such a farce that one must feel sorry for the Met.

2013 has been an absolute kicking for the Metropolitan Police. #Plebgate is nothing compared to the Mark Duggan inquest. And, the Mark Duggan inquest is mild when one considers the admissions that Doreen Lawrence was the victim of a police led smear campaign.

At the same time, the Met’s PR department, sorry ‘communications’ department, has gone from 150 to 100 members of staff. Despite the disasters, one of their PRs was promoted to the head of PR for Surrey Police.

The crisis in police PR was such that  in October, Henry Porter described police corruption as ‘rife’ and Sir Bernard Hogan-Howe had to promise to be ‘ruthless’ in rooting it out.

Stories have filtered through the robing rooms that the public, in particular some juries, have not reacted well to police malpractice. One story filtered through shortly after the ‘Watson’ settlement (defence lawyer locked up unlawfully – not the Met of course), one jury was heard repeatedly to say that they wouldn’t believe a word the police said.

And that’s really the PR problem. At present it is only certain communities which really are entrenched when it comes to distrusting the police. But, the wider community have no tolerance for the Doreen Lawrence type scenario.

‘Us and them’ is fatal to any police force that seeks to police by consent. And any other model of policing would never be accepted in a liberal democracy.

It’s in the context, of all this that I was recently asked about my, ‘policy’ toward police instructions. Quite simple, I will defend an individual officer, I won’t defend the institution (i.e I won’t act for police forces.)

I understand that the upper tiers of the institution do not reflect the reality of what goes on at the grass-roots. And despite the positive noises, the public are starting to realise the same.

In 2013 I’ve had two very conflicting experiences of the same police force. One morning, my car was broken into along with two of my neighbours. I didn’t call the police, my neighbour did. Two response officers attended, they were polite, interested and respectful. Then a SOCO turned up, she was even better. And, then, the DC assigned the OIC was very good too. In my view, the best PR the Met can get.

Later in the year it was a rare foray back to the Mags’. I was defending a private client on a minor matter. Three officers attended, there was an air outside the Court straight away. Slouching, exasperated huffs, attempts at staring me out and the Defendant. (I point out, this wasn’t even an assault PC job or similar…). There was even a touch of childish whispering.

I’d been on the receiving end of this plenty of times before in the Mags (there’s rarely senior officers around or officers knocking about from specialist, ‘high respect’ squads as you find in the Crown Courts of London) and ignored it.

After the first witness gave evidence, there was a break, I walked outside, and instantly, I find one of the police witnesses talking to the witness. A full blown conversation. I couldn’t believe it. I told them to stop it, another officer, the OIC, made some remark I couldn’t hear, but was clearly full brush of attitude.

The officer who had spoken to the witness, got in Court, I put to him that he had been having a conversation with the civilian witness – ‘no, just told him I wasn’t allowed to speak to him’. I had been there, close enough, I knew that wasn’t true.

And when that officer lied, that to me had more of an impact than Plebgate, Duggan or Doreen Lawrence. That was an affront.

I know that we don’t live in a Capital city where all the police are bad. That’s why I will represent individual officers.

I am convinced that those 100 Eddie Monsoons would be better replaced. With 50 good coppers in professional standard and another 50 good coppers training up those who don’t meet Sir Bernard Hogan-Howe’s gold standard.

Sweetie, darling, where’s the squad car…. from absolutely fabulous, to absolutely warrantable, constitutional, legit…

I revisit my opening again, it’s such a farce one must actually feel sorry for those good officers in the Met. But, those officers, those good ones must help pick out the rotten apples too.

FTD

I’ve never been a good spectator and I’ve never been a great athlete, the result is that I’m not the biggest fan of ‘sport’. Don’t get me wrong, I like international football and watch rugby and cricket, I’ll even throw a rugby ball about, or knock a few tennis balls about, but for me, that’s the extent of its impact on my life.

For some people, sport is much more important – fine, each to their own.

But I have to be honest, ‘sport’ and I use that big term, is annoying me at the moment. Not individual sports, but sport.

Sport is annoying me because it wants so much, but not really any responsibility.

Funding sport

Again, that big term, ‘sport’. And in this Country we have Sport England. Sport England have two roles, (1) they act a sort of statutory guardian for England’s playing fields, (2) they hand out money.

The money handed out, is not only money from the lottery, it is also money from the taxpayer. And, I don’t worry about it, sport is good for the economic well being of the nation and its physical health.

Great.

If you’ve got my money

Then, I object to it being spent to send athletes to a country where gay people are marginalised and brutalised.

After the Prime Minister has indicated that there will be no general boycott of the Russian Winter Olympics in Sochi, supported by Lord Coe.

Lord Coe who apparently said of boycotts: “They only damage one group of people and that is the athletes,”

The Winter Olympics give prominence, economic benefit and prestige to any country that hosts them. I do not believe that we, as a country, should financially support athletes who wish to participate in those games. Participation in those games is a form of endorsement of Russia.

My taxes ought not be spent endorsing homophobia.

The idea

is that sport and Government, or sport and society are somehow separate. That is why FIFA have got away for so long with allowing racism in football. It’s rubbish.

If sport wants Government money then it ought to stick by Government policy. And one would hope that Government policy is not: homophobia is fine. Rather instead, that we ought to strive for all forms of equality.

Sport has to start playing by the rules.

FTD

For want of prosecution

Posted: 24/06/2013 in Barrister, Uncategorized
Tags:

Contrary to popular belief, criminal defence lawyers do not have an arsenal of ‘tricks of the trade’ at their fingertips which allow them to take advantage of ‘loopholes’. The famed, ‘technicality’, is a rarity.

To stop a trial before you set sail takes a lot to do. One of the great joys in my career has been arguing that a criminal trial would be so unfair that the Court ought not hear it. I’ve won a few of those arguments, almost always because of police misconduct or missing evidence.

These are called abuse of process arguments. A lot of time is spent at Bar School teaching people about such arguments, a lot of time spent by barristers and solicitors debating such arguments and often large parts of the Court 2 and 3 list at the Royal Courts of Justice debating them on appeal.

One thing you don’t spend a lot of time learning about is another way of stopping a trial: having it dismissed for want of prosecutor.

The presumption these days

It is presumed these days that  if a Defendant does not turn up for her trial that it will go on without her. And what you’re taught at Bar School (albeit for five minutes on a Friday afternoon after you’ve been in the pub at lunch) is that if a prosecutor does not turn up to do your trial, then one apply for a case to be dismissed for want of prosecution.

The law can be put quickly enough: The leading case is R (on the application of CPS) v Portsmouth Crown Court 23. The reasoning in Portsmouth can be summarised as such: if the Prosecutor/Respondent fails to attend, the Court should not simply dismiss the charge/ allow the appeal, (a) without making vigorous enquiries as to the Prosecutor/Respondent’s whereabouts, and (b) if having made those enquiries it turns out that there is a prosecutor en route and the case is ready to be presented.

Indeed, in Portsmouth the earlier case of the Hendon Justices [1967] 1 QB 167 was noted, in particular at 174C, Mann LJ, giving the judgment of the court, said:

“However, the duty of the court is to hear informations which are properly
before it. The prosecution has a right to be heard and there is a public
interest that, save in exceptional circumstances, it should be heard. A
court’s irritation at the absence of a prosecutor at the appointed time is
understandable. That said, it can seldom be reasonable to exercise the power.

So, no prosecutor, no reason,  no chance of starting the trial, then it is possible to apply to have the case dismissed.

Time to mark that page

An application to dismiss a case for want of prosecution is a rare thing. Thus why such little time is spent teaching it and it is rare that a lawyer will have the law in this regard at their fingerprints.

But, it would seem that times are changing. In the last two weeks, I have been turning up the law twice.

On the first occassion, I was doing a two day appeal in the Crown Court, nobody arrived to respond to the appeal. After three hours waiting and what was estimated at the Judge as being £5000 worth of wasted costs, the appeal was adjourned.

Today, three barristers, waited to start three different trials. No prosecutor arrived until lunch time and no reason was given why.

It’s all a game

Quite often people say to me, ‘oh I suppose it’s all a game to you’. To an extent part of the joy of being an advocate is persuading a Court to your position and gaining success for your client.

Abuse of process arguments are an art form in that regard.

But, this is no art at all. This is running from one end of the pitch and depositing the ball in the Prosecution’s net.

It does nothing for the reputation of our justice system at all, it makes it look weak and ineffectual.

It must too be taken as an alarm signal that the CPS is on the verge of collapse.

But, defence lawyers and the Judiciary should consider making and granting applications to dismiss prosecutions for want of prosecutor. Without such applications the problem will simply remain a collection of comments on a cracked trial form.

FTD

In the outer atmosphere, hovering over Temple, the Evil Lord Chancellor (#failinggrayling) is building his legislative death star. Once complete it will rain havoc on the chambers below, obliterating them.

The publicly funded Bar has about the same defensive capacity as the average ewok. We shake our fists at the evil empire, as  MOJ civil servants maraud about Fleet Street in those big walker things crushing stray solicitors and counsel as they go.

There is though hope, Maura McGowan has shown herself handy with a light sabre, Sarah Forshaw and Michael Turner can aim a blaster gun. But still, the power of the dark side of the force is strong.

Return of the Jedi

The most memorable scene of all of the new Star Wars films is when young Darth Vader pops off to Jedi Elementary School and kills of all the ickle Jedi, bottom lips quivered world wide.

And the same is happening now. In March, most young Barristers have a follower hanging onto their coat tails. It’s a pupil barrister generally coming to the end of their non-practicing 6 months of pupillage and about to go into the big bad world and fight for justice.

As a form of informal training they follow about the young Barrister, pick up on tricks of the trade and generally learn when to sit down, stand up and speak and shut up. I know I’m older now, but, to me, there are less younglings about.

Every chambers seems to be advertising for 3rd sixes (barristers who have qualified but not been taken on as tenants) and there would seem to be a genuine thinning at the bottom end of the profession. Despite this, the Bar Council say that the number of criminal law pupillages has remained stable, despite this, not a single chambers outside of the South Eastern circuit offered a ‘criminal law-only pupillage’ this year!

In 2012, 58 criminal pupillages were completed. In the same year there were 88 new silks, at least 30 or so of whom are criminal barristers. The statistics are not good. The profession is not growing it is shrinking. Last year saw the profession lose a number of stalwarts to retirement tired of their treatment.

To borrow from a wise Rabbi

He who refuses to learn deserves extinction. 

And, the Bar simply have not reflected on their mistakes. Instead they have allowed the slow erosion of the profession.

Needed now is an old master, someone who has been where the Bar are, someone who knows how important they are to the preservation of justice and democracy in this country. A popular face to unite we Jedi and provide us with our Luke Skywalker to finally defeat the darkside of the force.

We are not going to find our Yoda in a swamp, nor even in a cottage in Buckinghamshire or Surrey. No, we are going to find them in a dusty chambers on the Strand. Somewhere, nestled in the Royal Courts of Justice is our Yoda. One of this country’s most senior criminal law Judges.

Time and time again, the Judiciary have shown that they can dance around politicians of all persuasion and now we need them to stand up for us. If the Judiciary come into the equation and start warning about access to justice (or lack thereof) then there is another powerful voice on side. Time for the Jedi to open their address books…

Word of caution

Asking the Judiciary to speak out and criticise the Government is, to an extent, contrary to democracy, contrary to the separation of powers.

However, the Government have fired enough broadsides at the Judiciary of late, (and more principle less playground FTD) if the Government get their way then access to justice will be limited to such an extent that the protections supposedly enjoyed in a democratic society won’t be enforceable.

So to the Judges:

You’re damned if you do and damned if you don’t

Or as Yoda would put it,

Damned you are if you do, damned you are if you don’t

FTD

‘Eddie fucking Stobart?’ Barked the Bearded Monogamist.

‘Eddie Stobart, Tescos, the Co0op, G4S, Serco’ I replied.

‘Eddie Stobart is a hauliers’ by now the Bearded Monogamist looked very confused indeed.

‘I don’t get it’ Said another friend

‘Basically, the Government will put criminal legal aid out to contract. Big companies doing the defending for the lowest price possible. For profit of course.’ I explained shortly, ‘in two years time, there will not be an independent criminal bar.’

‘Why do you never hear about this stuff.’  Asked our female friend.

‘Nobody really cares about criminal justice or legal aid,’

‘Until they need it’ we said in chorus.

‘Do you want me to protest for you?’

How it all started…

It started really at Oxford in 2006, before the economic downturn, law, accountancy, management consultancy, banking, were all relatively easy professions to choose.

In terms of the law, 80% signed up for the City. Pot luck really, they chose whichever solicitor’s firm best suited their personality, had the best freebies or dinners.

Another 5% signed up for the larger regional firms, not fancying a London way of life.

And 5% went for some type of Government job or similar.

The remainder went to the Bar. And all those who went to the Bar, even in 2006 were warned, the Criminal Bar was in the Government’s cross hairs in terms of funding.

Bearded Monogamist chose one of those jobs in the city. Went to a decent firm, got a training contract, did his conversion, they paid for his LPC and then he spent two years in the City. Having done so he promptly left.

He then joined a financial services firm. One which he has now exited.

Last night he was saying that I am his shining example, the person who chose a job he loved.

“Young people, nowadays, imagine that money is everything”

It was last night,  that I realised that criminal justice would not be saved by practitioners but by the general public.

For a start, culturally, we’ve a national predilection for stories of crime. Conan Doyle, Christie, Sayers, Ruth Rendell, Edmund Crispin (my fave) and Cole.

Rumpole, Kavanagh QC, Judge John Deed, Law & Order UK (questionable taste).

And, actually, we do have a national predilection for justice in reality. I wrote last year about how the NHS had become the new national religion: http://forthedefence.org/2012/03/01/the-church-of-the-nhs/ But, deep down, fair play, proper justice, man over government, they’re all very British beliefs.

Criminal justice

It’s not crime and justice as separated concepts which are of national interest. Criminal justice is part of our national identity.

The Christian conversion of England led to a transformation from a compensation culture in Anglo-Saxon law (yep, take out a man’s eye, you paid for it) to a more Christian conception of justice.

I saw the other day a twitter follower of mine who has for her description a passage from the Bible, Isaiah 1.17, translated variously as:

 learn to do good;
seek justice,
    rescue the oppressed,
defend the orphan,
    plead for the widow.

That Christian conversion was soon supplemented with the likes of Magna Carta 1215 and 1297

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers,

Followed by the Habeas Corpus Act 1679 and the Bill of Rights 1689 (or 1688 if you’re that way inclined),

Excessive Bail.
That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
 

Juries.
That Jurors ought to be duely impannelled and returned . . . F1

Grants of Forfeitures.
That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void.

So, criminal justice is part of our national identity. And y’all know what happens when you threaten, afternoon tea, the terraces, fish and chips and fair play. The British go to war.

Holy war

It is then a Holy War that the Criminal Bar need to fight. They need to show the public that part of national identity, our national religion is being put at risk by Grayling’s proposals.

There will be no Francis Bacon, Lord Mansfield, William Garrow, Thomas Erskine, Sir Edward Marshall Hall KC, Sir Charles Russell QC, George Carman QC, Dick Ferguson, no Michael Mansfield, no Kelsey-Fry, no Ed Fitzgerald QC.

Instead: a contracted defender, who protects for profits and works towards targets. Barristering in bulk. Soliciting to scale.

Justice will not be served by conglomerates who are more focussed on KPIs and undercutting rival contractors who might do the job cheaper.

Criminal justice can’t be contracted out like hospital cleaning.

Can I mention coin

It’s important to make something clear. The legitimacy of any war is undermined when there is a suspicion that it is being fought for profits.

I can say for my own part that I always knew I would be paid less than other parts of the Bar. And, I always knew that I would be paid less compared to those individuals who went to commercial law firms.

To give you an idea the difference at the moment is between £25000 and £30000 a year less. At the top-level, if I were to ever get there, the difference could be between £200,000 to £800,000 a year less.

Bearded Monogamist reassured me last night, in a public defender & private lawyer system, that the criminal bar would still survive in a smaller form and be paid for by private citizens and companies.

I actually believe that to be true. But, I signed up to a profession and a system where all were entitled to an ‘A’ grade defence, not only those who can pay for it.

And just as I won’t switch to being a ‘private’ only lawyer, I refuse to work for a company or firm who prioritise profits over performance.

I accepted the pay differential on the basis that I could do a job, in a system I believed in, with the only pressure being personal. My pressure being the professional performance I give for my punters. Not, pressure as to targets or performance indicators.

Ultimately

The criminal justice system has two purposes: protection and punishment. Criminal justice is about protecting the public, protecting it from people who breach the rules of society and from the excess of state authority. I.e, making sure politicians don’t lock up people they don’t like.

Punishment, or correction, is an aspect of criminal justice. Determining the correct punishment for a person should not have any financial aspect to it.

The Criminal Bar need to focus their argument not on pay, or even showing that we are good value for money. Those arguments have a distance, but with the majority of even the criminal bar earning in excess of the national average wage they need to show more.

The Criminal Bar must centre their argument and show that the injustices tendering would cause are against the British way of life.

Centuries of civil liberty are being put at risk by a man from who grew up in leafy Buckinghamshire, who studied history and then worked as a journalist and management consultant. A man who knows nothing about crime, is dodgy with crime stats and who compared Moss Side to the Wire.

We will win the war when we expose #failingGrayling as someone who threatens very British ideals.

FTD

Overnight

It all really went wrong for me overnight. A major supermarket chain bid for the West London criminal legal aid tender. They won. They undercut my regular solicitors massively.

My two biggest instructing solicitors were raided overnight. All the junior solicitors were given contracts, promised shares and double nectar points. Of the partners, a couple took judicial appointments, one even joined the CPS, the rest retired, one even runs a pub now apparently.

I was lucky that a couple of the firms were bought up and their outstanding bills were paid. It was a little like being given a redundancy payment. I put in a special account at the bank, I didn’t really know when I’d see any money again.

Meanwhile in Chambers

In Chambers things were a shambles. The QCs patrolled the corridors, telling people to maintain the status quo and that diaries would never empty.

Three of my mates left chambers overnight. One was to return to the North to do personal injury,  another had been offered a job at the FSA and the third was going to be an in house advocate at Supermarket Law.

The Second Junior Clerk and I slope off to Starbucks together. It’ll be ok we decide, we’ll just have to live off my prison law and public law for a bit and see how things work out.

Hope was gone

We were wrong. Within a month, 8 of the biggest criminal chambers had collapsed. Not due to income, but people having left.

At the Chambers crisis meeting, after the screams, our new tariff of prices was revealed.  The fees for criminal work were such that at my level, I couldn’t pay the rent on my house and on chambers.

I sat down and considered my options. It was as simple as this:

1) I could stay at the independent bar, but I’d have to give up crime. Prison law was no doubt in the cross hairs too, so I’d need to spend most of my days doing private immigration and employment cases.

2) I could lose my independence and sign up to a conglomorate legal aid provider.

3) I could try and persuade my way into a city firm or perhaps an inhouse role at a regulator.

4) I could join the queue outside one of the boutique crime firms who defend the rich.

5) I could leave the law.

In all honesty, I was torn and by the time I decided to make my move most people had already filled plum spots elsewhere. Two or three of the bigger criminal chambers survived though.

I made the call to friends there. The reality was painful. Most of the juniors at my level had been pulled out of the Crown Court. Their days were spent defending in road traffic cases and drink driving.

In the aftermath

Chambers had survived, most people were prosecuting for local authorities across the Country, some also had picked up Health and Safety Executive work. Most though had part time appointments in various tribunals to keep the income up and provide some sort of pension.

I laughed one morning on the way to do a drink drive case, the Daily Mail headline was ‘A National Injustice’. The Senior Judges were complaining that in Courts across the country things were coming to a standstill.

Later that day I got a tip off.

One of the companies who had been given the central London legal aid criminal contract hadn’t got enough senior lawyers. The company, who ran private security operations and a couple of private prisons, hadn’t realised how many staff they would need and with City of Westminster on their patch, they didn’t have enough extradition lawyers.

I filled out the application form the same day, it wasn’t so interested in my legal experience but asked me what my best quality and worst quality was. Further down the page it asked my about leading teams and showing sound judgment. Nowhere on the form was I asked about my reported cases.

The interview was more bizarre. My job title was no longer to be barrister or Counsel, not even lawyer, but ‘Senior Specialist Public Defender.’ I didn’t really understand what that meant. All of the interview was about motivating output from my team, nobody wanted to know what sort of advocate I was, or tested my skill as a lawyer.

The same day I was offered the job. They money is OK to be honest, I don’t have to worry about my own VAT or tax any more. I’ve even got a company car and a namebadge.

I don’t go to Court anymore though. Ministry of  Justice compliance means that I have to supervise the other legal staff in my team.

So I sit in my office in Croydon, it has air conditioning and is open plan. My office even has a door. At the moment, I’ve got overall supervision of 1500 open criminal cases. I’ve also got 150 extradition cases open.

1650 cases is a lot.

It’s not so bad though. Govt. Inc. who I work for have hired in help. I’ve got 32 Assistant Public Defenders working for me. Most to be honest are kids who have just done their A-levels. They open files, give telephone advice. Good thing is they’ve got a computerised system so they can copy and paste advice to clients.

And I’ve got 8 Public Defenders who go to Court and do the advocacy. They’ve sometimes got about 10 or 12 cases a day to do. If we get short, I’ve got a budget (not a big one) to pull in locums to do trials, most of them are people who retired during the Grayling changes, bit rusty on the law, but they can still stand up in Court. Of my 8 Public Defenders all but one were solicitors who never really wanted to do trials, one is a former pupil barrister but had just finished her second 6 when the change came in.

I’ve got my 2 Specialist Public Defenders too, as per the regulations, they are both bilingual, one speaks Polish the other French, saves money on interpreters you see. Neither had any extradition experience, but they phone me if they need a hand.

I haven’t seen a client in months. Most of my day is spent enforcing the company sickness policy. I’m going to get out of the Office in the next couple of weeks though, one of the Judges down at the Old Bailey is absolutely livid with a murder trial. It’s good, I’m pulling in one of the old QCs from retirement, I’m his junior, be like the glory days. Dust off Archbold and my wig.

I’ll have to keep my blackberry on though, I need to make sure we don’t miss any KPIs and put the contract at risk.

One of the UK directors of the Company has taken a shine to me. He says that I’ll have my own prison next. And we’re doing well in prisons it has to be said, since the Grayling changes we’ve built 5 more. Shareholders are delighted.

I’m a shareholder too now. That’s how I got my bonus this year.

I’m looking forward to going down the Bailey with that old QC, it’ll remind me how things used to be.

Post script

At this time there are hard choices for Government. They have to decide areas which can be cut and those which must be maintained. Justice has always been an expensive pre-occupation in this country.  It is expensive because it has to be done properly by seasoned professionals.

Supermarkets are run for the benefit of their shareholders, as are the likes of SERCO, G4S etc.

A supermarket manager does not have a duty to fearlessly protect his customer’s duty.

I have such a duty as a member  of the independent bar. I have no shareholders other than my bank manager who I am paying off, slowly!

If you are a victim of crime, you will want justice.

If you are falsely accused of a crime, you will want justice.

Justice will be second place to profit if Grayling is allowed to succeed.

Read more here:

http://criminalbarassociation.wordpress.com/2013/03/10/twelve-things-you-always-wanted-to-know-about-qasa-ocof-and-bvt-but-were-afraid-to-ask-a-guest-blog-by-ian-west/

Fighting for all,

FTD

So says Francis Bacon

No says the Officer in the Case.

The Officer in the Case is the person in charge of the investigation of a crime in England and Wales. Their duty, in law, is to investigate all reasonable lines of inquiry which may go to a Defendant’s guilt or indeed their innocence.

“Did you Detective follow all reasonable lines of inquiry in this case?”

“Yes.”

I then asked between 25 and 30 questions. Each was an obvious line of inquiry.

“Did you follow X line of inquiry”

No says the Officer in the Case.

“Did you follow Y line of inquiry.”

No says the Officer in the Case.

At my 29th question, Counsel for the Crown had his head in his hands. And the jury were shaking their heads.

“I shall ask again Officer, did you, considering my questions, follow all reasonable lines of inquiry in this case?”

“Yes.”

The case was promptly dismissed for want of evidence. Counsel for the Crown simply shook his head.

If you go down to the Court today you’re in for a big surprise

In localshire Magistrates’ Court, in Court 1 they’re prosecuting 47 people for TV license matters. In Court 2, they’re prosecuting 20 people who have children who refuse to go to school and in Court 3 they’re prosecuting a man for strangling his wife.

Despite the fact he strangled her (and strangulation is a risk sign for escalation of violence), he is being prosecuted for battery. A Crown Court trial is too expensive because his wife might not co-operate.

In Court 4, they’re prosecuting a man for stabbing someone with a glass outside a pub, it’s been charged as battery. A Crown Court trial is too expensive and while a jury might not believe the witnesses (they were all drunk) they should be able to get it home with a Bench of Magistrates.

Unfortunately in Court 4 the trial can’t get up and running. Nobody remembered to book a Barrister. The CPS don’t really prosecute themselves in Localshire Magistrates’ Court anymore as it costs too much to get the staff there. The Defence Counsel sighs, they can’t have a trial anyway, despite four listings, the disclosure they require hasn’t been forthcoming.

Everything by now has come to a grinding halt in Court 2. The Legal Advisor in Court has noticed a large legal issue with one of the prosecutions. The problem is the Defendant was deemed not to be entitled to legal aid and has no lawyer. The lawyer for the Local Authority is baffled, they are usually a litigator in the office, they don’t usually go to Court. Now they have to, the Chief Executive slashed the Counsel budget overnight.

Back in Court 1, the fourth Defendant explains how he can’t afford the TV fee as he lost his job as a supervisor at Localshire Inc. Of the 47 people facing the charge at least 10 will say similar.

In a back office, with formica furniture, the Justices’ Clerk is trying to compose an email to the rest of the Legal Advisors in the area. Her desk is covered with the diktats of the Ministry of Justice and competing guidance from the Justices’ Clerk Society. Her email pings with another crimeline updating with another High Court case about something going wrong in the Magistrates.

She tries to think how to draft the email. The local defence lawyers are having cases stayed for an abuse of process. The CPS are simply not serving things. The CPS are blaming the police. The police are blaming the CPS. Witnesses just don’t turn up to trials, nobody tells them there is a trial. She writes, ‘abuse of process cannot be used to discipline the CPS’, she doesn’t know what else they can do.

She puts disclosure on the ‘Court User Group’ agenda again.

Affirmation – Judicial

“I, ____________ , do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.”

Best of luck chap,

FTD

To stop the bitching forever that solicitor-advocates aren’t quite the real deal and to stop the suspicion that certain barristers take on cases out of their reach, the Government proposes QASA.

To prosecute (as most are instructed by the CPS) a criminal case at the Criminal Bar you now need to be graded. The same sort of scheme is to be rolled out for the defenders.

Levels will be 1 – 4. 1  Will Magistrates Court work and 4 will be serious cases in the Crown Court. We’ll decide what level we’re at first off and then Judges will decide if we’re in the right category and whether we can progress to the next level.

However, there’s an exception to the scheme: ‘the plea-only advocate’. The what now?

In short, there’ll be a category of advocates who don’t do trials, and they’ll be paid to turn up and advise a person as to how to plead. And they’ll be paid if that person pleads guilty, of course, if the person pleads not guilty then it has to go to someone qualified.

I can’t say how bizarre this is. Effectively it sanctions lawyers with no experience of serious trials advising someone on what might happen at that serious trial. Even though, they, the lawyer, have no experience.

So the suture only surgeon cuts you open, has a look and stitches you back up. If there’s anything that needs to be done in terms of the inside, the blood and guts then they’ll have to call in a real surgeon.

How is that a proper defence? This encourages the behaviour that QASA was supposed to stamp out in the first place. The whole point of QASA was stamp out those firms of solicitors (it’s not all…) who were sending people who weren’t qualified down to Court to handle cases. This sanctions that very type of behaviour.

But of course, really it only applies to poor people who need legal aid. If you can afford to pay privately then you’ll get representation from somebody with actual experience.

And of course, whilst there’s plea only advocates out there, they will be taking bread and water away from the actual advocates. Without said bread and water the real advocates starve.

I may be a brilliant brief. Joby, but I’m unable to walk on water or turn base metals into gold.

N.b I have used the term advocate throughout this post, like the Government does. I mean it to include solicitor advocates and Counsel. When I say, ‘real advocates’ this is what I mean: proper solicitor advocates who take cases within their competency and properly prepare them. Proper barristers who take cases within their competency and properly prepare them. Oh, and real advocates are people who put their clients’ best interests ahead of their pockets.

FTD