Archive for the ‘Solicitor’ Category

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

 

 

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.

I said as a caveat on twitter that Tuckers is not a typical firm. That’s for two reasons: (1) they’re national, (2) they do virtually all their advocacy in-house. They are the type of firm that the Government want to replicate, because they hope eventually they’ll be able to get them to contract out large amounts of the system and squeeze them.

That said, my first ever brief was from Tuckers….!

And of course, they are the biggest recipient of criminal legal aid in the country.

Personal touch

When you watch Frank Sinclair visiting the 63 year old woman accused of drug dealing you know why Tuckers is a success. Like all good businesses, they look after their customers.  There is no doubt that the vast majority of my clients do not choose their solicitor because of their legal prowess but instead because of the relationship they enjoy with them.

90% of Tuckers work is returning customers.

Coleen’s camera

Well forget if the jury believe this chap, the narrator sure as hell doesn’t.

‘I’m pleading not guilty anyway’ – we’re not like doctors, people all too often don’t take our advice.

We need more quantity

That’s what worries me. ‘We need more quantity’ says head of the police station reps team. But, they’re not going to get any more staff. This is simply put the worry – that quality it put at risk by the need to increase quantity.

This isn’t going to be a problem for just Tuckers but for all our firms.

To maintain their income levels their staff are going to be expected to increase their caseloads.

Governments cut fees, they’re going to cut quality.

 Has he got a current mobile

I would say 25 to 30% of my legal aid Magistrates’ Court clients did not turn up to their criminal trials. We would always make the same call to the solicitors, ‘hi, you got a mobile?’

The disconnected number message and tone is a familiar sound.

Who do they believe on the day

People often don’t believe me when I tell them this, the evidence of one person is enough to make magistrates sure that you are guilty.

Juries… less so

Personally, one word against another – no other evidence,  it should rarely result in a conviction. Being ‘sure’ is a high threshold, although it seems a lot lower in the Magistrates.

The prosecution want to adjourn their case because they have no witnesses

Damn right the Magistrates ought not be adjourning these matters. The public really need to see what goes on in Magistrates’ Court. They need to see what the CPS actually do.

Not warning witnesses to attend? That’s basic. That’s the next step on from, getting the prosecutor to Court.

Feel quite deflated

At the end of Briefs episode 1, I feel quite deflated. It has certainly been very accurate in some respects but not in others. ITV have certainly spun the programme as ‘everybody is guilty’.

The Defendants shown as well are not likely to garner that much sympathy from the general public. Perhaps it’s worth noting that several of our clients are just like you, not alcoholics, or elderly drugs pushers. Although I had the twinge, when she said ‘you’ll be alright Dad’.

I also, and I really mean this, find the fact that Soham: A Parents’ Tale being advertised throughout really lacks taste.

My end conclusion, a very ITV take on our world and no doubt not reflecting on all the good work that criminal defence lawyers do nor the fact that not everyone is guilty.

 

 

 

‘Pretty Boy’ , ‘Lad’ and ‘GQ’ sometimes have to work at weekends. Deals. Doing deals. I don’t really understand what they do, but it involves very angry lawyers sitting in their offices throughout all hours making conference calls and sending emails.

And, I work weekends too. Certainly not so bad as it was, it used to be a Saturday morning of hell in the West London cells with ‘John Bull’ but now that’s only once in a while.

I understand Saturday Court. It makes sense in any urban centre. Saturday Court is supposedly about remand time and making sure that people don’t spend too long in custody without judicial scrutiny.

Reality is,  police stations need to empty out the punters from Friday, before they start the Saturday rush…

 The dreaded pilot scheme

I feel sorry for pilots, every bad idea that the Government comes up with involves their profession in the title.

No doubt some of you will recall the virtual court pilot. I cannot express how much time and effort that wasted. I won’t rant about here – I have no doubt many  of my readers lived through that one.

The latest. ‘Flexible Courts’. That means, more Court hearings in the evening and on Sundays.

Sundays. People work on Sundays, I accept that. My first job was a Sunday job. But for the rest of the week I was doing my GCSEs and A-Levels. I wasn’t doing a Crown Court trial.

Why on earth do we need to open Courts on Sunday?

I was speaking to @LisaCallum on twitter. She’s a solicitor in a ‘pilot’ area. She was saying that locally they could fit the work into four days.

So why turn a Sunday into a Monday?

It’s not because the Government hates legal aid lawyers / criminal defence lawyers (although sometimes I feel that way.) I think there’s an underlying motive and you get a flavour in Bystander’s recent short blog:

http://magistratesblog.blogspot.co.uk/2012/07/slog.html

There’s two things that stand out to me:

They are working us hard these days. Because we have closed several courtrooms more business has to be shoved through the remaining ones.

And then, how,

I asked the DS [read duty solicitor – FTD] if she had advised her client,, and she said yes, but unconvincingly enough for us to retire for  cup of tea while the Clerk made quite sure that the defendant understood what he was doing.

More bodies going through a court room. More slog for the duty solicitor. More slog for the duty solicitor, less client time. Less client time, less advice time. Less advice – less access to justice.

I mean this with no disrespect to Bystander, but he’s a Magistrate! A Magistrate asking a Defendant about running a form of mitigation. That scares me.

But there’s the first saving:

More work in a single Court room means:

  • Less legal advisors.
  • Less Magistrates’ £7.50s
  • Less Duty Solicitors.

And this is what Sunday Court is about! It won’t just be remand, come on.

It’ll do everything.

Open a big Court on Sunday means:

  • Work can be transferred away from quiet rural Courts.
  • Rural Courts can be closed.
  • Legal aid franchises can be rationalised.

And my supporting evidence

The Government has produced this, ‘Swift and Sure Justice’ white paper.

http://www.justice.gov.uk/downloads/publications/policy/moj/swift-and-sure-justice.pdf

Have a gander.

Now you get why I’m suspicious:

More ‘police led prosecutions’ – translate: less CPS lawyers salaries to be paid. No independent scrutiny of charging.

‘Out of Court disposals’ – this is actually, Magistrates, sitting alone, handing out punishments outside of Courts – translate: no Defence lawyers. No legal advisors. No expensive Court buildings. And, no law. No law = no justice.

– ‘Reform of video link hearings’ – translate: less witness expenses. Less jailer expenses. Less access to clients, less ability to judge the demeanour of a witness.

Justice is not that malleable

I object to Sunday Court as it will have a negative effect on my ability to do my job.

However, worse than that it will have a negative effect on the people in the system.

Sunday Court is clearly part of a wider policy to close Court centres.  Court centres are expensive. Summary justice is expensive. The Government doesn’t really care about Summary Justice, it isn’t in the spotlight very much.

The negative effect is this: smaller courts will be closed. Smaller firms who service those courts will be closed (n,b the Government are keen for this as it will help them to push their ‘factory’ legal aid firms doing work on the cheap), people will have to travel further. People who might have a defence will be punished because they have no access to a lawyer and are not judged by a lawyer. Those using the duty solicitor scheme will receive reduced advice. Trials will be at the mercy of video links  and judgment as to demeanour will depend on a person’s ‘television manner.’

That’s not flexible justice. That’s breaking one of Justice’s arms off.

FTD

FTD is never found with a decent pen in his pocket. Whilst his plummy contemporaries pull out beautiful Mont Blanc pieces, no doubt given to them for some achievement by a friend or family member, I’m often without a pen at all, or some broken biro that I’ve chewed the end off.

Don’t get me wrong, I’ve got a couple of nice pens (one, very nice bought from my Grandparents), but they inevitably run out of ink and I inevitably have lost the last batch of £10 a pop cartridges I bought for them.

I’ve never been able to hold on to a pen for long since I was a kid.

My solution was generally two fold: 1) smile at a friendly usher and be provided with a piece of bulk bought Court Service stationery, this is now impossible since Court Staff were forbade pens and now must do with eco friendly economical pencils OR 2) hunt around the robing room/advocates’ room for some abandoned ill functioning writing implement.

But nowadays, I have a new solution. The free biro. Ah yes, that little piece of plastic marketing that adorns many a solicitor’s conference desk. I now collect them, in large quantities, probably to the extent that ought to be frowned upon.

Thing is, that little piece of plastic represents the demise of our jusitce system.

‘Eh?

No, haven’t lost my mind, honest.

But it’s back again, the great Solicitor Advocate v Barrister debate.

In short, solicitor advocates are qualified solicitors who take an extra qualification during practice which entitles them to practice in all Courts all the way up to the Supreme Court. They can qualify in civil, or criminal law, or both.

Solicitor Advocates complain that they are treated rudely by the Bar and are assumed to be somehow inferior.

Barristers complain that Solicitor Advocates take briefs which they are not capable of doing and often put profits before representation.

The reality

I have seen barristers be incredibly rude to and about solicitor advocates. I had one particularly unpleasant member of the Bar bark at me for having lunch, in public, with a solicitor advocate.

I have had solicitor advocate friends complain to me that they are pressured into taking cases that they don’t feel ready for or are not capable of. And, I’ve seen solicitor advocates sit behind barristers in cases, commanding large fees where they have done nothing and are merely paid for sitting there.

As a junior junior, I’ve grown up with solicitor advocates. ‘Favourite solicitor’ one of the people who has helped my career most has become a solicitor advocate recently. I don’t dislike solicitor advocates, I don’t feel superior to them, they just do a different job then I do.

I recently co-defended with  a solicitor advocate, I was first on the indictment so took the lead. When we got to the end of the trial and the jury went out he told me that it was his first Crown Court trial but he hadn’t wanted to tell me as he worried I might have taken advantage.

I felt incredibly sad at that. I would have helped out all I could, other members of the Bar would have done too I hope? A number of times in the Magistrates’ I have co-defended with people doing their first trial, they’ve told me and I’ve helped out, especially baby barristers.

I’ve said to ‘Favourite solicitor’ if she wants to do her first Crown Court trial with me then I am happy to co-defend with her. Am I a traitor? Am I taking work away from the Bar? I don’t think so, as I know she’d only ever take on something she was capable of doing.

Back to the biro

The problem with the free biros is what is represents. Big firms of solicitors doing big quantities of work. That’s what the Government wants and they want them to do it on the cheap.

That inevitably will mean that more and more advocacy is kept in house at solicitors firms and that barristers will be used less. Bigger isn’t always better, often means less individual attention for clients.

The free biro is: remember us, we gave you a pen. Not, remember us because we have a relationship and represent your interests to the best of our ability.

Standards count when you’re playing with somebody’s liberty/livelihood.

My reality

I don’t worry about solicitor advocates. Why? Because I’m going to do my job to the best of my ability, put in the hours and hope to be noticed.

The end of the Bar is not nigh, the end of the Criminal Bar might be. But, if the Bar as a concept was outdated, it would have gone already, like Sergeants-at-Law. Look at the other end of things, the Commercial Bar is booming. If Commercial Solicitors wanted to do that job, they would and they could, they don’t – why?

And this is my objection, not to solicitor advocates, but to the ‘bulk buy legal services provider’:

Independence. Solicitor advocates are for the most part employed by their partners. In-house barristers are the same. They are open to pressure from individuals more senior to take on certain cases, or conduct them in a certain way. On the prosecution side of things, the lack of independent advocates creates incredibly odd situations – who has ownership of cases? Quite recently my opponent, at the independent bar took a view about the case, despite her seniority she had to take instructions from an in-house CPS lawyer who knew nothing about the case.

Independence has two further advantages: it means fresh eyes on a case and it means that Court advocates will have a wider range of experience. Why? Because they are not limited to a particular pool of clients, police officers, Judges in a small number of court centres. Independent provides a breadth of experience which helps for continuing learning and development.

Money, money, money: I’m not allowed to give kick backs, or negotiate deals. The Government has set a rate (they get a good deal!) for the services of a qualified Court advocate. That rate takes into account the amount of witnesses, pages of evidence and other matters which will have an impact on how long I have to prepare a house.

If I am giving a bung to a solicitor, or there is a certain arrangement where someone has got an eye on how much they need to make out of a case, then I am not giving my client the best possible service as then I’ll need to take on more work to fill the hole the bung made and so on.

A client, facing imprisonment or the loss of their livelihood, should get the best possible court advocate. That advocate should be picked for their skill and experience and how they will communicate with that client.

Because, that’s how a commercial solicitor chooses a barrister for their commercial client!

Money is no object

I know money is tight for everyone, but the solicitors and barristers engaged in dodgy financial arrangements are just hastening one thing. That’s big, factory firms, defending clients as cheaply as possible.

Criminal Defence PLC, keeping the overheads low. Keeping the standards low.

But you get a free biro.

So it’s not about barrister v solicitor advocate. It’s lawyers who put clients first v lawyers who put their pockets first.

FTD

p.s – the two firms I nick pens from the most are highly rated and very rarely use in house advocates – irony, the bloody irony.

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.

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

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

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

Pink public life

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

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

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

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

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

Closed society

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

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

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

Homophobic violence

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

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

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

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

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

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

How do we make criminal justice more gay friendly?

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

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

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

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

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

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

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

Walk down my street holding hands

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

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

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

FTD

I realised the other day that I hadn’t done any prison law in months. It didn’t really worry me, when barristers are busy they don’t really worry at all.

But then I spoke to a QC in chambers. In terms of prison law, she’s one of the stars and has done some of the most interesting cases. She was asking me how I was doing with prison law, and I told her, she said I’m not alone. Even she has very few prison law instructions.

In terms of prison law practitioners, there were never many of us in the first place. And of the prison law lawyers, only a few did the whole ambit of prison law. In a basic sense prison law has two aspects: advocacy relating to release and litigation relating to conditions. The advocacy aspect was parole boards and adjudications (mini criminal trials in prison), the litigation aspect was amazingly varied from a prisoner’s security category to their rights to have visitors from their family.

And in terms of clients, prisoners are some of the most vulnerable. A prisoner can’t just pop down the local high street and visit the local solicitor or law centre. If they’re denied legal aid, they can’t sell assets or ask family members and friends to help them out. Nor can they visit the local university’s law clinic to ask law students to help for free.

Prison law: a potted history

In all honesty, there’s not much to the history of prison law.

In short:

Habeas Corpus Act 1640

Somersett’s Case 1771

Abolition of debtors’ prison 1869

Abolition of death penalty act 1965

But since then there has been an explosion of litigation.  A cadre of dedicated advice workers, solicitors, barristers and campaigners have pushed the envelopes of the minimum standards that prisoners can expect. They have fought to eradicate racism in prisons and to recognise that women prisoners have particular rights specific to their gender.

And to get to that point? A fraction of the legal aid budget, a very small fraction indeed. Every solicitors firm with a criminal contract were allowed to practice in prison law.

But then

With a populist stroke of a civil servant’s pen the outlook changed. Rates for prison law work were cut and firms were required to apply for a specialist contract. Each firm had to have a supervisor with large amounts of experience to supervise their prison law output.

The result? Overnight prison law practitioners shut up shop. Solicitors who had been practicing prison law were sent back to the Magistrates’ Court to fill duty solicitor slots. No new practices could be opened as they could not find the personnel to act as supervisors.

The net result? Less capacity.

Rights with an expiry date

Rights are useless without lawyers to enforce their recognition. I spent fifteen minutes or so trying to find training contracts being advertised for new solicitors to practice in prison law, I couldn’t find any. In terms of pupillage, I found four pupillages with a prison law aspect in chambers and two at solicitors’ firms with a prison law aspect.

But of course there has to be work for those pupils to do otherwise all they will do is learn from their pupil masters and when they’re off on their own have no hope of accessing any work to build on their own practical skills. If those pupils cannot find prison law work then they will be forced to abandon it as a practice area.

Charities will not be able to fill the gap. American prison law litigation (which is at least two or three decades between our own) is funded via charity subscription, mostly through the ACLU, but here there isn’t the same option. English prison law litigation is expensive. The Prisoners’ Advice Service, the Howard League and the Public Law Project all maintain legal staff, they do so as charities, they couldn’t on top pay for the litigation they undertake, they need legal aid.

Pro bono? Can you imagine city law firms dedicating time to represent prisoners? Hardly as great a photo opportunity as mentoring children in Tower Hamlets.

And on the other side

The Treasury Solicitors who represent the Government against these campaigns are still recruiting trainee solicitors and pupil barristers. In addition, the Treasury Solicitors run a ‘baby barrister’ scheme so that new barristers are exposed to public law litigation which will include prison law claims.

They cynic in me wonders whether there’s more to all this than meets the eye. Prison law and prisoners’ rights are never popular, especially not in the media. The prisoners’ right to vote cases have embarrassed both the present government and the previous government.

But yet, the prison law budget, although a fraction of the legal aid budget has had such minute examination. Oh, and I should point out, that examination started before I joined the Bar, before the cuts to other services all began.

The result of the above is simple. There’s a countdown on those prisoners’ rights that we have invested in over recent times. They will soon become worthless if there are now new lawyers to enforce and protect those rights.

FTD.

Love me for a reason, let the reason be love…

Well I won’t be briefed for my music taste. Somehow Boyzone got on my iPhone again. Those bloody mac viruses, so irritating.

Briefly

Barristers receive their instructions from solicitors (unless they’re set up and qualified to take work directly from the public). The solicitor generally chooses the barrister.

When I was the briefer, I picked barristers who I trusted, who I got on with and I knew would do the job. They’re twitter pals now, people like @HumanRightsQC , @NJBArmstrong and @Leoniehirst.

Now I’m the briefed rather than the briefer, I wonder why people pick me rather than another similar barrister, or one more experienced.

Taking the mystery out of it

It’s the mystery when you start at the Bar. Why me! And, several of my solicitors definitely book me for results.

Some go for chambers for their ethos and their reputation.

Some go on word of mouth and recommendations.

I’m comfortable with that.

Customer is king

And here we are in a capitalist country. Choice is everything. You can choose who to get your electricity from, your water, your groceries, your broadband – your legal services.

But sometimes I start to feel a bit uncomfortable…

I’ve had diary sheets that read: ‘must be represented by a man, can be aggressive’ – sensible for the solicitor to warn I suppose. Nothing to say thought that a female barrister couldn’t keep a client just as calm or do just as good a job.

Or what about people charged with sexual offences. A lot of the time they ask for female barristers to defend them. How do you feel about that?

Or what about this, when deciding between me and a colleague the solicitor would apply the following formula: ‘you see for the old lags and the proper villains I instruct you as you’re like a stereotypical old school brief. And if they’re young gang lads or foreign blokes, I give them to X, she’s young and pretty.’

I didn’t like that.

Or, how about this

‘must be white, male, British barrister’  a diary note once said in my old chambers that I didn’t like.

A friend at another chambers had a Jewish female pupil, their clients would quite clearly not take to her for their beliefs, it caused a real ethical headache.

I don’t get to ask why I have been briefed by a solicitor, or by a client. Some have simply looked me up on the website and picked me. Others have been sold me by the clerks. And others just get me because I happen to be free that day of the week.

I can’t reject a client because they have picked me because I am white and British. That I don’t like at all.

How far should a lay client be able to choose?

How far should a solicitor be able to choose?

To what extent should the clerks facilitate that choice?

I really don’t know the answer.

But what about when I do? What about when I find out why a client has chosen me? Is it ok they chose me because I went to Oxford? Is it ok they chose me because I’m at a certain chambers. Is it ok they chose me because I know X county, or because I represented X person. Is it ok they choose me because I’m a man? Is it ok they choose me because I’m a white man under the age of 30?

I don’t know. We live in a society when customer is king.

I don’t suppose Sainsbury’s ask when people buy Pepsi and not Coke.

It doesn’t mean I have to be comfortable.

FTD