Archive for the ‘Jury’ Category

‘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

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On my long train journey today I caught up with various blogs and news stories about criminal justice. It’s a habit indulged by the various bits of kit in my court bag which connect to the internet at high speed.

Today’s highlight for me was this http://www.no-offence.org/content.php/178-Guest-blog

Written by a gentleman who described himself as a ‘Change Manager’.  As you’ll see, one of the reasons he concludes that the police are of low morale is because they aware that they aren’t providing a good service.

Respect

The Police Federation talk a lot about respect, they talk about how the Government should respect the police and how the public should do the same.

I actually agree.

However, what I don’t agree with is that respect is something automatic. I am not sure where this mantra came from. It seemed to first appear in schools, you must respect teachers, you must respect each other.

One of the reasons I became a barrister is because of schooling. When I grew up I thought it was unfair how students were treated by certain teachers, or how I was treated. I thought it wrong that I should respect people when they are doing things they shouldn’t do.  The requirement to automatically respect something or someone leads to injustice.

And actually, the criminal justice system has in built into it a lack of ‘blind’ respect. If ‘blind respect’ was to rule supreme then we wouldn’t have trials, we would simply take what the police and witnesses say for granted. We wouldn’t have appeals, we would presume that trial judges got things correct on the first time and there would be no appellate process.

My Recipe for Respect

As said, I do not expect blind respect. In fact I think blind respect is wrong. However, to earn respect, I think all actors (from Usher to Supreme Court Justice) in the Criminal Justice system should sign up to the same:

To admit mistakes are made and that no actor is infallible.

To act with honesty and integrity.

To follow the law (even when you don’t like it)

To be courteous to all involved with the system (from Defendant to Victim to Probation Officer to Parole Board Member etc etc)

To recognise that fairness is the central aim of criminal justice and without it the system cannot be fair at all.

Fairness and courtesy are linked

I think we overlook the link between fairness and courtesy. I personally think that reality police programmes do the police more harm than good. Often, the police are shown acting like law enforcement officials rather than officers of the peace. There’s a dispute, the police go and listen to the victim (clearly a courtesy as well as a duty) then often are seen arresting the complained of person, sticking them in the back of the police car and then start asking them questions about what happened.

It is a courtesy to listen. I know some people simply carry on when Magistrates start whispering to each other on the Bench, assuming they won’t be listened to. I don’t, I stand there in silence until they have finished. My biggest pet hate about the Magistrates’ Court is when Benches announce decisions without even turning to the Defence advocate, it is neither courteous nor is it fair.

I dislike in the Crown Court, colleagues who jump down people’s throats when they go off piste when answering a question. Just stop, ask the question again, and again, until the Judge directs the witness to answer. It has far more effect than being rude to a witness. A jury will prefer your courtesy and note the witness being evasive.

If an argument is being made ad hoc, or extempore, if you’re a Judge or Magistrate allow the advocate to at least set out what their argument is before dismissing it out of hand. Again a courtesy, but it goes to fairness.

If you’re a police officer at Court, don’t simply assume that your time is being wasted and don’t assume that you’re there because the Defence have demanded it.

And, if you’re an Officer In the Case, don’t  tell the defence solicitor to ‘fuck off’ when she asks you a simple question outside Court. (True story…)

Only human

Going back to my recipe for respect, I have to admit, I may sound holier than thou now but I’ve had my fair share of moments. I’ve gone hard on rude witnesses, bickered with disagreeable legal advisors, traded verbal blows with bobbies, argued with the Chair of a Bench or two.

But my default position is polite. And as my Mother says, I shouldn’t rise to it

If all the actors in the criminal justice system received a base line of courtesy then there would be an appearance of fairness. Those who appear to be fair are likely to garner respect. A system where there is an appearance of fairness will attract respect.

A fair criminal justice system deserves respect.

FTD.

Of course, ‘I’m listening’ was the catchphrase of fictional radio psychiatrist Dr Frasier Crane. Frasier was a character that lasted 20 years, funny, neurotic, pompous and entirely loveable.

Of course, Crane and the actor, Kelsey Grammer who plays him are conservative. Nevertheless, Grammer is someone who knows the price of privacy having sued to protect his own and having being sued for supposedly invading that of an ex girlfriend.

Theresa May clearly doesn’t share his conservative concern about privacy. Theresa May wants to listen to everything you have to say.

But not of course if you’re less than keen on the draft Communications Bill. If you have something to say about that, well, Theresa is more interested in next season’s Laboutins.

She’s certainly not listening

Libertarian commentators have voiced concern about the Bill. Why? Because they don’t think it is proper to require private communications companies to store details of every text message, email, website visit or phone call that you make.

And, the Liberty crowd aren’t the only ones. The Constitutional Court in Germany held that to do so would be unconstitutional, oh and so did the Czech Republic and… the Romanians.

But should you dare criticise the Bill you are simply dismissed as a conspiracy theorist.

Yes, you’re a conspiracy theorist. You live in your parents box room, you have body odour, wear a ‘They Shot JFK’ t-shirt and use your super fast broadband to look up websites all about how the Queen and the CIA are in league to try and take over the world.

Or…

You’re a concerned citizen. But why, why be concerned? Because, afterall, if you’ve done nothing wrong then you have nothing to hide.

Yeah sure.

Sorry, but I still have some concerns.

My first concern is my phone bill. ‘eh? Well, Orange are going to have put in place new systems to record all these billions of peices of information and hand them out to the Government when required. Of course, that’s going to be added to my phone bill.

And, well, there’s my tax bill too, no doubt there’ll have to be a variety of systems put in place and non-jobs to manage this wonderful society saving power. We’ll be paying for those too no doubt.

But, it’s not going to be simply the police and the security services with this power. Oh no, because of course HMRC will require them to track down tax evaders and well, the local council will need them too to catch those pesky benefit fraudsters (and people who put their bins out a night early.) And, lest us not forget the NHS, if too many biros go missing from A&E their counter fraud lot better be able to check everyone’s phones to be sure there’s not a trade in illict bics.

Expensive, given to hundreds of agencies and, lacking in safeguards.

Because, to get this data you will not need a warrant. The local snooper at your local council will be able to get hold of this data and no doubt they shall.

Practicality aside

The reason this has come into the foreground is simply because the technology is there to do it. Computers are more advanced, this amount of data can be handled more simply and efficiently. So, why not.

And, if I were being cynical (guilty), I might say that as coppers and prosecutors get the chop, these powers might make it a little easier for speculative investigations when the man power isn’t available to do the full thorough job.

But, what about other dangers? Because, technology is advancing. Voice recognition is a great example. Remember your first PC? No doubt it was bundled with ‘voice type’ software. You’d spend 4 hours training the software to recognise and type your voice. Then, you’d use it in word for the first time.

‘Dear Sirs, I write to complain about the service I received in the Staines Tesco’s yesterday’

And on the screen would appear

‘Bear furs, might detain trout reverse in the stains testicles lest he may’

But technology has moved on. Voice recognition is reaching new levels, software is available which indicates whether people are telling the truth. We phone call centres and conduct banking transactions with computers.

So, we can’t be far off technology  that can pick out key spoken words and phrases. Say a keyword on the phone, security service file opens. Or, why not install the technology in all licenced premises, or better yet, all public places.

Why not? Because I’m entitled not to have my phone calls listened to, or my emails scanned. I’m entitled to share a secret with a friend.

Walk down this path and criminal trials will turn into English literature lessons. The few police officers left will be forced to collate huge transcripts and when juries get them guilty and not guilty will depend on the interpretation of a word or a phrase. Of course, the police won’t have time or the resources to investigate any other things most of the money being spent on IT technicians.

Anger

If I want to slag off the Government, I am entitled to. I am entitled to because I live in a liberal democracy. I am entitled to do it on the phone, or via email, without the contents being checked because I mention a key word. I’m entitled to privacy.

I cannot understand how the Conservatives who harped, loudly about civil liberties before being elected and slammed the Labour erosion thereof can possibly put this draft bill out there.

Moreover, the Liberal Democrats, supposedly the party that will guard our rights the most are supporting this. For heaven’s sake, they have liberal in their name!

Why doesn’t the coalition save the money on the software and simply adopt the Gauleiter system. Boris can be gauleiter of London and that woman who lives down your street who curtain twitches can be Blockleiter and report you to the council when you put your bins out an hour early.

As a country we have shed so much of our own blood and that of others in the name of liberty, each step like this we take dishonours those lives.

Start listening now Theresa

FTD.

If you follow me on twitter you’ll know I’ve had one of those weeks. There’s a pain in my neck and I’m not entirely sure if it’s from leaning over a computer or sleeping on a train.

When I finally got out tonight I was ready to switch off. So I dialled up ‘Pretty Boy’ – not that he’s inane, but when I phone him I don’t have to talk about crime, criminals, coppers, prisons or anything like that …. the conversation is much more… extra curricular. And, after ‘Pretty Boy’ I was going to call ‘TV Blonde’ – neither answered.

So as I wandered along through the streets of legal London, dragging wheelie bag behind I got thinking.

First, I smiled to myself, a helpful message @MPSWandsworth my local police, they looked into something I had concerns about. And, they’re fans of my blog, I laughed to myself, funny how many police readers I actually have.

Then I looked at twitter as I wandered along. The tweets were quite sad really. Sam Hallam was a happy piece of news in a sense, but sad that justice had taken so long. The Law Society announced what can only be described as a laughable minimum wage for new trainee solicitors and the police continued to talk about Winsor. Meanwhile home affairs correspondents and police commentators were talking about police privatisation. In other feeds human rights heroes, Hugh Southey QC and Mark George QC were talking about the death penalty.

I was shocked to see how many people had retweeted, my simple missive of the day:

‘Cut legal aid, lower advocacy standards, destroy the independent Bar, privatise the police and then #samhallam will be the norm. #legalaid

There is a divinity that shapes our ends, rough-hew them how we will

I had a total selfish moment. Bloody hell I thought, when I signed up for my wig it was meant to be simple, do a job I love, defend people in a fair forum, be paid a decent wage, get silk if I’m good enough, retire, die happy.

Now it hardly seems possible.

And then I thought, look at what I’ve missed,Bushel’s case, Somersett’s case, defending the suffragette, marching with the civil rights campaigners for racial integration here and in the US, busting the corrupt police squads, the Guildford 4, Birmingham 6.

And it’s only going to get worse, hellish vision posited here: http://forthedefence.org/2012/04/14/the-way-were-going-criminal-justice-2025/

I got quite depressed, as if I’d missed my moment to make a difference.

But then, I actually realised that we’re standing at a moment in history. A fundamental change in how we deliver criminal justice in this country. It started slowly under the Labour Government.

So: PCSOs, unqualified prosecutors in the Magistrates’ Courts, cuts to legal aid, erosion of the rules as to hearsay, the right to a jury trial and bad character evidence going before juries. A prison service which was underfunded and actively supplanted by the private sector. The probation service’s culture fundamentally changed virtually overnight. Indeterminate sentences handed out all over.

And nobody really paid attention to the slow drip. People complained about the individual changes, but nobody stepped back and looked at things in the whole.

In that environment, Barry George, Sam Hallam wrongfully convicted, probably with many others. It took what, almost 20 years to get justice for Stephen Lawrence.

Now, because of the economic circumstances, that drip has become a gush.

The police have marched against Winsor.

Court staff have walked out.

I’m going to have to learn four languages as there’s no interpreters left.

Barristers are trying to work out if there’s a right for them to strike.

Judges are complaining about declining standards in prosecutions.

People are worried about declining standards in criminal defence.

Trainee solicitors in legal aid fields are looking at a better living in Tescos.

People are asking whether you get a better service if you pay for your own defence and some lawyers are saying yes.

Naturally, we’re all concerned about our own position. We’ve all been reviewed individually, the Bar had Carter, the police have Winsor, the prison service have endless reviews and the probation service have a new name every other week.

Now, we’re saying there should be a Royal Commission on Policing, there should be advocacy tests for defence barristers, we ask Serco to fill the gap where public services used to.

When we say, we don’t like that, we’re accused of self-interest. And, of course that’s true, we are self-interested to a certain degree. But I hope people who don’t work in the criminal justice system accept this:

We were never in it for the money. If I’d wanted to earn more, I could have sat in the office next to ‘Pretty Boy’ in the city.

We’re vulnerable, why, because we’re in a vocation, our vocation is to secure justice, that I hope is the same for lawyers, coppers, probation officers and the rest…

And that should be our focus.

Hold the line

Has been a popular hash tag of the police in their campaign. A terribly British phrase which conjures a mental picture of other glorious moments in British history.

So rather than fighting individually (with the risk of being accused of self-interest), explaining how the gush will wash away our part of British criminal justice, why don’t we fight together for a single vision.

My Moses Moment

In my view, the ten commandments of British criminal justice are these:

1) The purpose of the criminal justice system is to protect the individual. Be it, to protect individuals from crime, protect individuals from the coercive power of the state, stop individuals from patterns of destructive behaviour and provide their safety through the passage of the system if Defendant, witness or victim.

2) The police, must police by consent. The police are holders of public office and can never be privatised. They must remain independent from Government, prosecutors and the media.

3)  Every person accused of a crime deserves quality legal representation. Quality of defence should not depend on ability to pay or the financial arrangements between legal services providers and the state.

4) Every person accused of a crime deserves to be tried by an independent body of their peers. The Magistracy must be diverse in age, race and gender and reflect their local communities. The Magistracy must be able to perform their function without excessive interference of the state. If accused of a serious, indictable offence, then every person has an absolute right to trial by jury.

5) Children should not be criminalised for trivial offences. Grass roots discipline comes from teachers and parents/carers not from police officers, lawyers and Judges.

6)The mentally ill should not be punishment for offending. Their treatment is from the social welfare element of the state not the imposition of punishment by the criminal justice system.

7)Prison shall be used as a last resort. Effective community punishment should be the preferred method of disposal. Restorative justice should be common place. For those who custody is the only option, they should be held in public owned prisons where their rehabilitation is the main aim. Punishment, be it in the community or in custody, ought never be for profit.

8) The purpose of the probation service is to prevent re-offending. This  is not an actuarial science, instead it is an idiosyncratic process where well funded probation officers aid offenders in re-integrating into society.

9)The Crown Prosecution Service must remain independent. They must make decisions as to prosecutions free from pressures of the police and the executive. Prosecutions should be based on local need and the prosecutor’s code not concerns of the media and/or pressure groups.

10)The Criminal law protects all and applies to all. Nobody will ever be subject to scrutiny by the police or punishment due to their race, age, gender, nationality or sexual preference. Nobody is above the criminal law due to their occupation, office or income. The Criminal law is deaf to the media but is open and accessible so that the public can see that justice is done.

At the bottom of Mount Sinai

I hope we could all be there together. Those above are my ten commandments. I am sure some of yours would be different. But imagine if we could agree them.

What an amazing message that would be to Government and to the public.

If we all held that line together.

Imagine the march, where I stood there wig and gown, next to me was a Magistrate like Bystander, on the other side a cop, or @Chairforce1, maybe some senior members of the judiciary, QCs too and solicitors from the £6 per hour trainee to the big hitting leaders  of major legal aid firms and the prosecutors, probation officers and YOT workers. Marching behind, coppers in their tunics, Occupy protestors with their banners, victim support workers, legal advisors to the magistrates and qualified criminal justice foreign language interpreters.

That’s not just a line. That’s a dam which could stop the gush from washing away 100s of years of British justice.

FTD

Yes, I know. We haven’t seen the Bill yet.

Yes, I know. The Bill will be debated and changed.

Yes, I know. The Bill may not even make it into law.

But,

There’s more to life than Winsor

The Police are worried (and I understand why in part) about Winsor. The Police and the public should be worried about any ‘national’  police force. We are not America, we do not need a supra police agency. Why? Because for the most part the criminal law is the same throughout England and Wales. There is no Federal law and Local law. Also, local police forces already co-operate with each other on ‘cross-jurisdiction’ issues. And, national projects are ably co-ordinated by the Met, i.e Counter Terror and specialist protection, Royal protection and diplomatic protection.

And, remember too that the FBI deal with counter-intelligence matters as well. We have MI5 and special branch. Both are older than the FBI and both have sufficed.

Why re-invent the wheel? SOCA deal with extradition matters and larger pieces of international trafficking/fraud – fine, can’t we just leave at that?

Because the risk is this, there’ll be a drain of resources and talent upward into this national agency. That will have a knock on effect on neighbourhood and rural policing. That was very apparent when I lived in the US. The ‘provincial’  policing departments of sheriffs etc had very poor resources compared to their national counterparts and certainly couldn’t attract the talent.

There are two further temptations:

1) That rural/neighbourhood policing can be filled with cheaper options. So what is the cheaper option? Private companies. How are private companies cheaper? Lower entry levels, lower wages, lower training, lower resources.

2) It’s easier to integrate with European policing structures. And European policing structures forward the ‘European criminal law’ project which several  individuals are pushing. A European criminal law makes me shudder. But that’s for another time…

For my vision of where these type of policies lead us see my post on Criminal Justice in 2025: http://forthedefence.org/2012/04/14/the-way-were-going-criminal-justice-2025/

Summary neighbourhood justice

Summary neighbourhood justice. Hmmm, well that’s what Magistrates do already isn’t it?  They are local people, who sit in a summary court of justice. You see, what the Government don’t want is the court bit. Because the court bit is the expensive part. It involves cell staff, buildings, admin, lawyers … all cost. What are the Magistrates going to be doing above what they are doing already.

This: http://www.telegraph.co.uk/news/uknews/law-and-order/8941499/Minister-signals-summary-justice-role-for-magistrates.html

So, effectively, putting Magistrates in police stations and having them decide whether or not offenders should be punished out of court there and then or they ought to proceed to Court.

No thank  you:

  1. The police / YOT teams have this discretion because they are full time professionals. They know the prevalence of particular crimes in areas and so on. They have the knowledge to make decisions as to the exercise of a discretion. If that discretion is being exercised incorrectly then that is a matter of training, not importing Magistrates. Magistrates do not sit full time. Magistrates do not have the same feel for local offending and offenders as those professionals that work with them.
  2. Magistrates are meant to be members of the judiciary. They are therefore meant to be independent. This initiative renders that  independence open for encroachment.
  3. Magistrates are not lawyers for the most part. Magistrates are advised as to the law by a legal advisor, without this advice there is a risk of Magistrates acting unlawfully.
  4. Peer pressure. How is a bench of Magistrates to feel if they get halfway through a case and there is scant evidence but it has been sent to Court by one of their colleagues. There will be a certain amount of pressure as they will be aware of the decision one of their number has already made.
  5. Punishment, no matter what type, affects the rights of the individual. If the law is punishing somebody that person deserves to have the protection of a legal  professional guiding them and making appropriate representations on their behalf.

Let’s get real: the Government want less cases  going to Court. The Government want the Magistracy to legitimise this. Please don’t.

Drug driving

Apparently drug driving is to be outlawed. Hmmm, I’ve done a number of drug driving trials already. Have I missed a trick? Was it not an offence. Oh wait, section 4(1) of the Road Traffic Act 1988,

 

4 Driving, or being in charge, when under influence of drink or drugs.E+W+S

(1)A person who, when driving or attempting to drive a [F1mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.

? There it is, on the statute book.

I imagine that the Government are going to try and toughen it up, so removing the difficult to prove ‘unfitness’ aspect. Of  course this will mean that the Crown will have to prove the person has been taking drugs. That will of course require expensive equipment. And, because they have learnt nothing from prison law, it means litigation as to the accuracy of the equipment.

Waste-of-time-and-money.

One-for-the-Daily-Mail/Express

Lights, camera, action

Well, all barristers are failed actors so there is no doubt that some will relish the opportunity to appear on screen. This business about demystifying the justice system is utter rubbish. If you’re mystified by the Magistrates’ Court then go and sit in one. If you want to know what goes on in the High Court then you’re welcome to come and visit. Anything else?

There’s nothing mystical about a jury trial. You can watch. Or you can choose not to defer your jury service. They’re not sport/spectacle. They should be allowed to have some dignity. Because I’ll tell you now, if you put a TV camera in a criminal courtroom, then you are putting massive pressure on people, that includes not only lay people like jurors and witnesses, but also Judges and Counsel.

I’ve been in a murder trial in the US where cameras were in the courtroom throughout. It was a circus.

Let’s take a more dignified approach to our justice process please.

They giveth, they taketh away

I was saying just last week how happy I was with some of the provisions of the Protection of Freedoms Act 2012, http://forthedefence.org/2012/05/02/protection-of-freedoms-act-2012-a-quick-guide/ 

The Crime and Courts Bill is not looking as happy a piece of legislation.

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

In the last few weeks I’ve heard mention of a case I knew nothing about before: R v Simon Hall. And, I should say before I go any further, I’m not briefed in the case and have only seen a selection of the papers.

But,

From what I’ve seen, I’ve got the awkward itch. The itch I get when a case doesn’t make sense.

The case

Late in the evening of Friday 15 December 2001 or early in the morning of Saturday 16 December 2001 an elderly lady was murdered. Her name was Joan Albert. She was stabbed five times. She died in her house’s hallway.

The next year, in the summer of 2002 a local lad was arrested, his name is Simon Hall.

The case against Simon Hall is not the strongest, in fact, the Director of Public Prosecutions himself said of the case that it is: “really peculiar, because there is no particular reason to suspect he is guilty of this offence, there are lots and lots of question marks. There is one crucial link and that’s the fibre evidence, and that’s what holds the whole case together. It’s a very odd case, it’s circumstantial, break that central piece of evidence and the case falls apart.”

It’s right that Simon Hall would have known where Joan Albert lived. His mother did errands for her. And, as a child he visited the neighbours. Simon Hall would have known that she was vulnerable.

And perhaps at the time of her murder, Simon Hall cannot account for his movements exactly. The time of death being unknown pretty much renders this point moot.

But yes, it was those fibres that Kier Starmer mentioned that were the centre of the case at trial and on appeal. Effectively, fibres which are said to be from a pair of trousers which were found in Simon Hall’s car and in a cupboard at his home were found in the hallway of Joan Albert’s house.

The CSI effect

Prosecutors complain that since CSI has had its many incarnations blasted over the airways that it’s harder to get a conviction. They might have a point, but I think it cuts both ways. Whenever there is some forensic evidence in the point is often blinds people from other issues and takes on more signficance then it really has.

If you want to look at the forensic evidence yourself then please google the case, it’s widely argued on various websites.

My itch

I’ve not left anything out honest. There was knowledge of the victim, there was possibly a window of opportunity and potentially forensic evidence.

If we’re having a CSI moment, I like at least two disciplines to be present, fingerprints and DNA for example. But here, there’s no fingerprints, nor any DNA. Oh, and even though the perpetrator broke in via  glass window there were no glass shards found on Simon Hall’s clothing.

And motive? Well it’s got to be money, it’s a big step for any burglar to kill. And, isn’t it odd that Simon Hall was not shown to be in any great need of cash. If he was to burgle, would he burgle someone he knew?

There was no link to the murder weapon in terms of ownership or evidence of possession.

Of course, there were no witnesses, nor any CCTV.

No direct witnesses anyway. At 2am, when Hall has a clear alibi, various neighbours heard a large crashing sound.

Oh, and only 10 minutes away an elderly man was burgled on the same evening. What was taken during that burglary? At least one knife, a knife that appeared very similar to the murder weapon.

Uncomfortable yet?

The Court of Appeal were not, but they were just considering the forensic evidence.

The CCRC are uncomfortable, they are looking again at the case.

My invitation to you is to get to know Simon Hall’s case, see how you feel about it. After an hour or so reading and digesting, I imagine that you too might feel that awkward itch.

FTD

In a criminal trial I hate the fact that I don’t get the last word. Every minute that goes by since my speech I think the jury will forget what I have said, or some of my best points.

But it gets worse when the jury have gone. Disappeared to their little room with weak tea and budget instant coffee. At that point, you’ve lost control completely.

Then there’s the agony. The waiting. The first half an hour is just about passable. But after that it’s painful. And then, there’s a dreadful ticking on the clock. 2hrs 10mins.

Unanimous verdict

I think everyone outside of the criminal justice system imagines that when a person is tried, then, the jury must make a decision upon which they all agree. In England that’s generally 12 people. 12 people say guilty, or 12 people say not guilty.

After all, in this country, to be found guilty of an offence it has to be that the Crown prove their case beyond reasonable doubt. Put otherwise, they have to make a jury ‘sure’ that a defendant is guilty.

Surely it follows then, that  for someone to be found guilty, all those 12 must say guilty?

Give ’em some slack

The fact is, after those 2 hours 10 minutes have passed the Judge has the discretion to allow the jury to return a verdict upon which they don’t all agree. There can be a majority of 10 to 2.

1 perhaps make sense. In this country we don’t have advanced selection processes when it comes to picking a jury. So, on every jury there might be one person who from principle could never convict someone, or another who might believe  that there’s no smoke without fire and is predisposed to conviction.

Fetch me my calculator

So, 11 to 1 is fine, maybe.

But what about 10 to 2? What about 10 people saying guilty and 2 saying not guilty. 2 people saying,  they’re not sure that the Defendant is guilty. I suppose 2 isn’t a lot out of 12.

But, think of it as a percentage. It’s what, 16% are of the jury are not sure he is guilty. How is that beyond reasonable doubt?

Thus! If you project that figure over the British population that’s about 10 million people.

How on earth can a conviction be safe when 10 million people might have found him or her not guilty?

Maybe I’m just…

… a bad loser. And I certainly am. I hate losing jury trials especially on a 10-2 majority, it’s like a sodding photo finish.

The maths above is just a silly example.

But isn’t it odd. We require such a high standard of proof: being sure. And then we allow someone to be found guilty even though over 10% of the jury isn’t sure.

As a general rule in the US there is a requirement that the decision is unanimous. I believe it’s constitutionally required in death penalty cases.

The cruelty is this: in England, you could be convicted for murder, face life, even though two people on your jury were not sure that you are guilty. All of a sudden 16% seems an awfully wide margin of doubt.

Can you be sure that justice is done when a sentence is imposed, when not all a jury agree?

FTD

There are still days when I wonder if I want to be a barrister. I think that’s healthy. If I didn’t question my own professional worth then I’d let ego or destiny take over.

Ego is easy to give in to. There are moments of sheer glory in your wig. Heart stopping moments when a jury announces a not guilty verdict; when your opponent agrees a consent order; where a parole board releases your client. There are moments when people who you hardly know will throw their arms around you; grown men will cry; people will come up and shake your hand congratulating you for a wonderful performance.

It can be like a drug. After all there’s no doubt that we have adrenalin rush moments.

Can you keep a balance between ego and self-confidence? If ego takes over then you will lose professional perspective. If you lose all self-confidence then you’ll lose the confidence of your client, professional and public.

‘Silk-Cut’ , my mentor, is going to be a QC. He’s brilliant, the legal professional press says so. Clients, professional and public, love him. But even he has moments of doubt, gloom for the future.

But he will always tell aspirant barristers if you want it, if you can do it, you will.

Do you want it?

I won’t bore any of you with the statistics. Becoming a barrister is hard. There are more potential pupils then there are pupillages. There are fewer tenancies than there are pupils. The numbers indicate you’re taking a hard route.

But for the moments I mentioned above it is worth it. If I get a result for a client, I imagine it is the same feeling a doctor gets when he cures a patient.

But, the first thing you must remember is not all patients pull through.

Dead on arrival

Some cases that land in your pigeon hole are dead on arrival. The client has no defence or can not make a claim. Can you accept that? Can you accept that no matter what you do you are bound to fail?

For those going toward criminal types of work, the acquittal rate in the Magistrates’ Court is low. In extradition, I have no idea what the discharge rate is  for European Arrest Warrants but I imagine it is very low.

In immigration, asylum is regularly refused from people who come from countries which we cannot imagine living in.

Brave people are given a cold shoulder by the dispassionate law.

Sleep at night

You have to be able to switch off. I lose sleep before big cases, I dream about trials that will never happen. But after a case, I can generally switch off as if I didn’t I’d never be able to focus on the now and the next case.

So, you have to be in one sense as dispassionate as the law is and on the other hand show your client that you care enough to listen to their story.

Mercenary not miracle worker

Barristers especially get described as being mercenaries, going into battle to fight for a client for money. Factually that’s right, but we’re humans too, honestly.

I remember being in a conference room in my old chambers, one of my first cases which really required proper weeks and months of preparation. My client was a 12 year old boy, who was in tears, who didn’t really understand what was happening. His mother was full of anger and hurt. His solicitor full of outrage that things had got so far. I wanted to take that 12 year old boy home, I wanted to go to his school and sort things out. I couldn’t, it’s not my job. I got that boy the result he needed. But that doesn’t mean I’ve solved all his problems, it doesn’t mean that I’ve saved his life.

If you’re a barrister you cannot cure a person of their drugs problem. You cannot take an abused child away from their parent. You can’t erase their past. You can only help mould a moment of their future.

If you want to be a barrister you have to accept that you won’t be able to do everything for everyone.

It’s a rare case that changes the world

A rare case indeed, that would change the world. But some do. So it’s from one extreme to another. At this stage in my career I doubt I’ll ever be potent enough, clever enough, persuasive enough to hold on to a case which can change the world. There are people in my chambers who have had such cases, real moments in British history. I have unlimited respect for them.

Could you ever be strong enough to shoulder that kind of case? And, if you did, could you remember that the case never really belongs to you but to your solicitor and lay client?

Extreme

You know if you want to be a barrister that hours will be long. You know that your finances will be tough. You know you’ll go from ecstasy to agony in the same month, week, sometimes even day.

You can be the golden boy one day and the next you can be out of favour.

Barristers drink too much. Barrister smoke too much. Some eat too much. Some eat too little. Some trade children for fulfilling professional potential. Some can balance everything, never really having a moment for themselves.

Some change history. Some do little more than earn an average living.

Can you?

Risk several years of your life on your wig? By the time you add it all together it’s a decade long commitment to really give it a go from start to early finish.

You might be spat at.

You might be screamed at and insulted. There have been moments when I have walked across a court foyer with everyone’s eyes on me full of hate or distrust. Shoulders back, head up.

You might be dropped by a solicitor for a single tactical choice that you’d still stick to. You might be dropped by chambers because you forgot to shine your shoes one morning. You might not get pupillage because you answered a single question in a way which the panel didn’t quite like.

Do I still want to be a barrister

I still love my job. If I stop loving it I will do something else.

Tick box exercise

If you’re not sure about being a barrister then please don’t take the risk.

Once you’ve ticked all the boxes

x Don’t mind job insecurity

x Don’t mind financial insecurity

x Don’t mind long hours

x Like travel

x Like the public

x Like the law

Then tick a final box. Can you adopt the mentality of a barrister?

FTD

On 28 January 1953, 59 years ago, Derek Bentley was executed at HMP Wandsworth in South West London. British execution was by way of hanging.

Like many defence briefs I’ve been shown by today’s gaolers where the gallows used to stand. It’s a cold spot. Surrounded by grey stone. Rather bland for a place so important in our country’s history.

59 years ago, at 9am on that spot, Derek Bentley was hanged by the neck until he was dead. Protests outside the prison led to arrests.

Protests outside the criminal justice system led eventually to his posthumous pardon in 1998

Why we defend

The Derek Bentley case is one that I had read about before I went up to Oxford. It’s one that most law students in this country have at their fingertips and it still features in practitioner texts.

It’s a case that fascinates me and is an important reminder that the doctrine of ‘joint enterprise’ remains one of the most controversial in the English criminal law. For a thorough read on the doctrine, please go to Francis Fitzgibbon QC’s article at the Justice Gap: http://thejusticegap.com/2011/12/joint-enterprise/

The case of Derek Bentley

In November 1952, Derek Bentley was 18. He was an epileptic having received a head injury during the blitz. At aged 4 he was injured having fell from a lorry.

He had few previous convictions. Minor things. Having been sent to an approved school for a stint he was released. He was a functional illiterate and his IQ had been assessed as being 77. He had been rejected from national service as being ‘mentally subnormal’.

2 November 1952

Bentley and another young man decided to go out and steal from the local confectionery factory in Croydon. The other lad was a 16 year old, Christopher Craig. Craig had a service revolver in his pocket with bullets which didn’t properly fit.  Whether Derek knew that Christopher Craig had the revolver is still a matter of debate.

Arriving at the factory, they set about their burglary. Unbeknownst to them a hawk eyed local girl had spied them. The police were on their way.

DS Fairfax was one of the first on scene. He climbed a drain pipe and challenged Bentley, grabbing hold of him. Bentley broke free for a moment. Christopher Craig revealed the revolver.

Let him have it Chris

The police say Bentley said. In 1999 Christopher Craig still denied that Bentley said it. Bentley always denied uttering the words.

In any event, Chris Craig fired. Striking Fairfax in the shoulder. Despite the wound, DS Fairfax kept hold of Bentley. He was restrained. When,

There were more shots

And whilst the injured Fairfax had hold of Bentley, one of those shots fired by  Christopher Craig struck a PC Miles in the head. He died instantly.

At the trial it was clear that nobody was sure how many shots had been fired and by whom. Some of the officers present that evening were armed.

Nobody could agree what, if anything Bentley shouted. And if he did shout, ‘let him have it’ what it meant.

I, as Bentley’s barrister did at the time, question whether or not he could be responsible for what happened whilst he was effectively under arrest by DS Fairfax.

Indeed, as too should we question whether Bentley was able to participate in the trial process with such a low level of intelligence.

The verdict

It took the jury 75 minutes to convict. The jury recommended mercy.

Christopher Craig, the alleged gunman could not be executed because of his age.

Derek Bentley could. Despite the Lord Chief Justice expecting a reprieve to be given, Derek Bentley was executed.

The ongoing appeal of Derek Bentley

The Bentley case concerned the public at large. The execution of a man who had not pulled the trigger did not sit well outside of the legal community.

And then, in the 1970s the evidence was analysed again, there were questions as to whether this could simply have been a case of the PC being caught in the cross fire. Indeed, it was concluded he could have been killed by a Met Police pistol.

In 1998 the Court of  Appeal quashed Bentley’s conviction. The jury had not been properly directed about joint enterprise. The conviction was not safe.

The Bentley case is still important today. How responsible should Bentley be for Craig’s act? Should he be responsible if he knew he had a weapon?

Could Bentley have a fair trial? If someone is functionally illiterate and of such a low IQ, could they possibly participate in a criminal trial in the Old Bailey? Are there anyways we can adopt the criminal justice process further for those who are mentally impaired? Should we insist on putting people with limited cognitive capacity on trial? Afterall, we assume those under age of 10 cannot be liable.

So 59 years after Bentley’s execution we still in this country are not sure of two things:

1) Should X be responsible for the criminal action of Y

2) Should X be tried in a Court of law when he cannot properly follow or take part.

The Bentley case continues to be important. There can be no doubt that he is the victim of English justice. All of us involved in the justice system must fight for the Derek Bentleys.

FTD