Tag Archives: either way offences

Either Which Way But You Lose

A courtroom somewhere in England and Wales. HHJ A.P.A. Ratchik QC presides. The defendant, Bill Sykes, sits in the dock and has been identified. The defendant is represented by Miss Fi Owen. The prosecution are represented by Mr Bailey-Haq

Fi Owen: Your Honour, my learned friend, Mr Bailey-Haq represents the Prosecution and I represent the defendant. The matter comes into Your Honour’s list today for trial but I have an application that Count 1 be put again to the defendant.

(The Judge consents and the defendant is rearraigned on an allegation of theft of a quantity of razor blades.)

(The prosecutor rises to his feet.)

Bailey-Haq: Your Honour, my learned friend was kind enough to indicate that the defendant was prepared to enter a guilty plea to that count. Of course that leaves the second count, the allegation of affray. In short a security guard from the store alleged that Mr Sykes used his dog to threaten him when he approached the defendant outside the store. I had previously been told that CCTV of the incident did not exist. In fact a disc was found in the bottom of the CPS file this morning and shows a very different picture indeed. In those circumstances the Crown do not anticipate that there is a realistic prospect of conviction and therefore intend to offer no evidence in respect of that count.

HHJ Ratchik QC: Very well, I will enter a not guilty verdict. Given his appalling record I assume you want a report Miss Owen?

Fi Owen:Yes please Your Honour. Three weeks today takes us to the 15th of next month.

HHJ Ratchik QC: Probably best to avoid that. Tomorrow I start a four week trial that is reserved to me. That will still be running at that point. Complicated stuff as well. Can’t be listing work that may interrupt the flow.

Fi Owen: Well may I suggest the following week. The 22nd?

HHJ Ratchik QC: I am afraid that date is a Judicial Sentencing Conference. A necessary commitment for the judiciary. It is difficult to keep abreast of all these changes. Schedule “This” and Schedule “That” meaning a defendant is a dangerous offender on Tuesday and a candidate for probation by Thursday. All defendants being released at the half way point in their sentence, unless they are not, because of a different Schedule which means they are released at some other point, unless the prisons are full lthen they will probably be released on a tag half an hour before I pass sentence….

Fi Owen: Quite Your Honour, perhaps I may suggest….

(The Judge has however, warmed to his theme and is not to be interrupted)

HHJ Ratchik QC: ….and then you have the Sentencing Guidelines from the Council with their differing culpability features and impact features and their additional features so you can have one from the top and three from the middle and one from the bottom. It can all be such a conundrum. So that sentencing conference is a real must Miss Owen. No rest for the wicked. (The Judge chuckles to himself) Or those that sentence the wicked.

Fi Owen: Yes, quite Your Honour. I was going to suggest the following day? Tuesday the 24th?

HHJ Ratchik QC: Oh no, Miss Owen. That is the last Tuesday of the month. That is “why did your trial crack?” day. Lots of cases listed that day. Far too many for me to deal with anything else. Can’t list the sentence that day.

Fi Owen: In any event I spoke too soon, looking at my diary I cannot attend that day.

HHJ Ratchik QC: Oh, Miss Owen, you will be here. Explaining why the trial cracked. It is just that we don’t have the time to do the sentence that day. And you Mr Bailey-Haq, you’ll have to be here as well.

Bailey-Haq: Your Honour may I suggest that we provide that explanation on the day of sentence? Would seem to make sense to avoid a hearing…..

HHJ Ratchik QC: No, Mr Bailey-Haq. The last Tuesday of every month is “why did your trial crack?” day so that is the day for explanations. Not the last Wednesday or the first Thursday. It is the last Tuesday. You don’t go having Christmas dinner on Boxing Day do you Mr Bailey-Haq? That’s the way of anarchy.

Fi Owen: Perhaps I can suggest the following day then? The Wednesday?

(The Clerk stands up. He addresses the Judge in a voice loud enough for everyone to hear.)

Clerk: Listing have asked us to avoid the 25th. Apparently you have 43 preliminary hearings listed that day. There is no room for anything else.

HHJ Ratchik QC: Sorry, Miss Owen. You heard that, its a “no can do” I’m afraid. Have a lot of timetabling to do that day. Lots of orders to make.

Fi Owen: (sighs) The Thursday then? Your Honour will not be engaged in “why did your trial not crack?” Tuesday or in “preliminary hearing” Wednesday so can we do the sentence on the Thursday of that week?

HHJ Ratchik QC: No Miss Owen. That is the last Thursday of the month. That is “why have the CPS failed to comply with orders I made five Wednesdays earlier on Prelim day?” day. That is a packed list, I can tell you. So that’s a no.

(The Judge leans forward and speaks to his clerk.)

HHJ Ratchik QC: Actually add this case to the list that day.

(Both advocates look relieved. It is short lived.)

HHJ Ratchik QC: Yes, Mr Bailey-Haq, it just occurred to me that I will be seeing you that day so you can explain why the CPS had not reviewed and served the CCTV disc sooner than today.

Bailey-Haq: I anticipate that I will be providing the same explanation on “why did your trial crack?” Tuesday so perhaps a further appearance is unnecessary and….

(The Judge cuts across him.)

HHJ Ratchik QC: Christmas Dinner on Boxing Day, Mr Bailey-Haq, Christmas Dinner on Boxing Day. Anarchy. Do you see?

(Bailey-Haq seems to give up and sits down)

HHJ Ratchik QC: Well we are getting nowhere fast. I will list this case on Friday 27th for sentence.

Fi Owen: I am afraid that I am in the Court of Appeal that day Your Honour.

HHJ Ratchik QC: We could do this all day long Miss Owen. I have to draw a line somewhere. I am sure there are plenty of eager, young advocates in your chambers who will be able to accept the sentence of Mr Sykes here on that Friday.

Fi Owen: I feel constrained to point out to Your Honour that, as this was an either way offence where the defendant elected that cracked on the day of trial, the fee is only £194.

HHJ Ratchik QC: Miss Owen, I know that things have been a little tough for the Bar recently but I am sure you can find someone junior prepared to conduct a sentence for £194. Not a princely sum I know, but surely there will be plenty of takers.

Fi Owen: Your Honour misunderstands me. That is the total fee payable for the case. For this case. From start to finish. The moment he pleaded and the prosecution accepted the plea I have been effectively paying for the privilege of representing Mr Sykes.

HHJ Ratchik QC: How on earth has that happened?

Fi Owen: Those are the Government’s rules Your Honour….

HHJ Ratchik QC: I appreciate that. What I mean is how come you allowed this to be a cracked trial?

Fi Owen: Because I have no control over it. The defendant decides what he decides, the Prosecution decide what they decide and I pick up the bill. I could have tried to insist that we had a three day trial. I could have encouraged my Learned Friend to give it a go before the Jury and rely upon their good sense to see the video and acquit the defendant. I could have refused to take further instructions from my lay client. I could have guaranteed a decent fee by swearing in a jury. I could have done all that and Your Honour’s trial for tomorrow would have got precisely nowhere. But I didn’t. And now I have two thirds of not very much to cover the PCMH, today and the sentence. And any other mention that the case has required or will require. So, Your Honour, there is a lot of explaining that needs doing. The first thing being why on earth I carry on doing this awful job….

(The court is totally silent. Miss Owen leans on her lectern, a tad out of breath)

HHJ Ratchik QC: Did you originally say three weeks today Miss Owen? On second thoughts, it may be that we can accommodate you….

Two Little Things

It is often the little things in life that irritate – a man constantly coughing on the train, an unnecessary mention, Jimmy Krankie…. So today was a day when something big came along. Today was the day the MoJ announced their plans for the criminal justice system, or rather their plans for the carcass.

There is much to be irritated about in the big document that the Government have produced. The impenetrable and misleading “Chart B1” for example. Or the contention that we will all be able to make up the cuts in income by us all doing lots of other work that would otherwise have gone to our talented colleagues who have left. Solicitors may find the idea of an 8.5% cuts being introduced in three weeks time somewhat irritating as it wipes out the profit of most firms overnight.

However two “little things” have really got my goat. The first is the letter from the Lord Chancellor. He-who-should-be-forever-ashamed has finally got the idea of what his job entails as he has told the Chancellor of the Exchequer that in the next spending review no more money can be cut from Legal Aid. I imagine the Lord Chancellor has similar conversations with his barber. You cannot cut what is no longer there. Sadly this is all too little, too late. Apparently he could not protect Legal Aid from the first onslaught.

Another thing in his letter (although this is still part of my first “little thing”) is when he says “I want to make clear today that under this Government, there will be no further reduction to advocacy fees, and in my view there are clear limits to how far fees can be cut.” That is exactly the point we have been making all along Mr Grayling. There is a limit. And it has been reached before this round of cuts. Have you listened at all over the level of cuts? No. Just the mechanism. Which, incidentally, started out as PCT and tapering daily fees so that shows what an expert you are. At least we have the promise that there will be no further reduction under this Government. In other news, turkeys surviving Easter are told that they have nothing to fear until the next major festival based around Christian beliefs.

The second “little thing” truly made my blood boil. I hope I have the technological knowhow to add a picture to my blog

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If I have failed miserably I will tell you what it is. It is a screenshot of a Tweet from the MoJ. It says that they have increased the fee paid to lawyers if the CPS drop the case. Oh joy unconfined! O frabjous day! Callooh! Callay! Well not quite. All the MoJ have done is partially reverse a bad decision. They have allowed the advocate to be paid properly when the CPS drop an either way offence where the client has elected trial “because that is not our fault”. Well it is not “our fault” when the same client pleads guilty because they change their instructions. Or when they plead to something because the prosecution change their stance. That is not our fault either. However it is is not this policy, utter bollocks though it is, that gets me angry. It is the presentation of this as good news. That confirms for me everything I always suspected of the MoJ. They are not to be trusted. They lie. They twist. They cheat. To pick this one piece of news out of the savagery of the proposals and present it as good news is like telling an amputee they will save money on shoe leather.

Without a shadow of a doubt the news today about Legal Aid, if implemented, will lead to people losing their jobs. Not just lawyers but support staff. To attempt to blind anyone with a Tweet about “improvements” is dishonest and distasteful. It also galvanises me for the fight ahead.