Tag Archives: ministry of justice

Better Early Than Never

A colleague of mine recently received a bad character application prepared by the prosecution. The application was sent out from the prosecution 12 days in advance of the next hearing in the case.

The Criminal Procedure Rules and common sense dictate that such applications should be made as soon as possible and at an early stage in the proceedings. This was not an early stage in the proceedings but at least it gave the defence 12 days to respond and, in the current climate, perhaps we should rejoice at this small victory.

The problem is that the application was sent out two weeks after the trial. The next hearing date is sentence.

Comical and depressing, all at the same time.

I know exactly what the problem will have been. It was dictated and went into typing weeks ago. There it will have languished for a while before being returned. Then it will have sat around for a while, waiting for the busy and the harassed caseworker to reach it in their ever burgeoning list of tasks.

How do I know this? Because I held in my hand today a letter dated 1st September that made it into the post for the 26th September. 25 days to turn around the typing and posting of a piece of correspondence. The problem? Lack of resources.

Recently HHJ Newell made the point, in open court, that we are fast approaching the time when there will be a miscarriage of justice. The fact is we have probably already gone beyond that point. We just do not know it yet.

As Judge Newell observed, “they [the staff at the CPS] are best endeavouring to work with a broken machine, it is not their fault.” It is a machine that has been broken by our politicians and the politically ambitious.

If a piece of prosecution evidence can be sent out two weeks after the trial and only in time for it to be wholly irrelevant for sentence, how can we be confident that an important piece of evidence is not being missed so as to lead to the wrongful acquittal of the guilty? Or some piece of unused material is not revealed that acquits the innocent man? How many ticking timebombs currently await discovery by the Court of Appeal?

When politicians talk of cutting this and cutting that, they should consider the damage they are doing.

The Case for the Defence

There is much current debate about the size of the Legal Aid bill footed by the taxpayer. In an episode of typical disingenuity the Lord Chancellor has recently expressly stated that the public have the choice between Legal Aid and the NHS, that the £220 million that he looks to save would be spent protecting the spend on healthcare.

Now the point could be made that the Legal Aid budget has already contributed much by way of cuts with £200 million already disappearing from last year’s spend in this year’s projected budget. Or that slashing 20% of the criminal Legal Aid spend would not even cover one day of the nation’s spend on the NHS. Or that if we were to cut money to the NHS you would cut the spend on non-essential workers (lets say money spent on actors, hairdressers and leadership training courses) before you cut the income of the doctors and nurses who provide the quality of service at the coal face.

However I would suggest that Legal Aid is as important to the provision of welfare in this country as the NHS is. It is about time that the Lord Chancellor recognised this. Until he does he cannot perform the key function of his office. The provision of welfare is all about the provision of a safety net in times of need. Criminal Legal Aid falls exactly in to this category. People are provided with Legal Aid in criminal cases when the State chooses to prosecute them. Anyone provided with criminal Legal Aid would prefer not to have to need it, in so much as they would rather not have been arrested in this first place. So in criminal cases it is not the accused who goes out seeking Legal Aid,it comes to him.

One of the problems that the legal profession face in firmly establishing the credibility of Legal Aid as part of the safety net provided to all taxpayers is the notion that it is only criminals, often repeat offenders, who benefit from its provision. I for one would hesitate to introduce blameworthiness into the provision of welfare. Should a smoker be provided with free cancer treatment? The obese with diabetic assistance? Of course they should. One of the difficulties is persuading the public that prosecution, like ill health, is something that could befall them as much as those who very obviously are the authors of their own misfortune.

Let me give you some examples of the way in which it is not just the guilty that find themselves in need of Legal Aid. These are actual cases that came before the courts in Manchester in recent times. The first was well publicised at the time (see here). I know the defence advocate in the case. A woman in Greater Manchester was subjected to the horrific ordeal of rape. This involved her being raped as she walked home by a man unknown to her. The police collected samples from her that could be tested for DNA in a hope to identify a suspect. A positive result came back. A man in the South West was identified. He was arrested, denied the offence and denied he had ever even been in the area. He was charged with rape and remanded in to custody. He was provided with the assistance of a solicitor and a barrister. There was no other evidence against him but it would be presented to the jury by the prosecution that the presence of his DNA in intimate samples taken from the victim could mean only one thing – his guilt.

The case was prepared for trial. Other evidence obtained showed that the defendant was in the South West the morning following the offence but such as still gave him a window of opportunity to commit the offence. A combination of enquiries made by the defence and the officer in the case being concerned by this aspect of the case led to a re-examination of the scientific evidence in the case. It transpired there had been a huge error. A tray used in the laboratory that tested the sample had been previously used in a DNA test that related to a relatively minor offence of violence in which the defendant was a suspect. This led to his DNA remaining in the tray and contaminating the sample from the victim. His innocence was only discovered days before his trial was due to start. He was an innocent man who needed Legal Aid.

A further example happened in the case load of the same defence advocate. A woman worked in an office. One of her colleagues got married and went on her honeymoon. Sadly whilst she was away the colleague’s house was burgled. A games console was stolen in the course of that burglary. The games console had been in its original box but the burglar had removed it and left the box behind. A scene of crime officer provided a statement that stated the box had been tested for fingerprints and a print matched the fingerprint of the defendant, the woman who worked in the office of the bride.

This came to light because the woman in the office had, when she was much younger, been involved in an argument in the street which had led to her arrest and caution for a public order offence. Her life therefore had not been completely blameless but that was the only transgression. That meant that the police therefore had her fingerprints on record and the match was made. She denied the offence, denied that she had ever been to her colleague’s house, had never handled the cardboard box and could not account for the presence of her fingerprint.

Once again this case came to the Crown Court. One can easily imagine that everyone involved, her lawyers and the CPS, thought that there might be a guilty plea. Fingerprints are unique. The presence of a fingerprint in a dwelling with no innocent explanation is clear evidence of the person’s involvement in the burglary. However she pleaded not guilty and the case was adjourned for trial. Legal Aid provided her with lawyers and with funding to have the exhibit examined to double check it was her fingerprint (such mistakes being unheard of but it required independently verifying). Those investigations discovered that when the test for fingerprints was undertaken a number of items were examined under the same reference number. So whilst that reference number did relate to the console box it also related to a good luck card that the victim had received from her colleagues at work….

Those two cases are examples where the independent scientific evidence pointed strongly at the guilt of someone entirely innocent of the charge. As an aside it must be a worry what may happen in such cases in the future if the advocate is under financial pressure from an employer to deliver the more lucrative guilty plea. However the vast majority of taxpayers would be comforted by the fact that their DNA would not be floating around labs or that youthful indiscretions had led to their fingerprints being on a police database.

So let me move on to the next illustration. A hard working man of entirely good character worked as a satellite television engineer. He installed a new box in the house of an elderly couple. He asked to use their toilet. When he had left the woman of the household discovered that a valuable necklace was missing from the top of her bedroom cabinet where she had left it that morning. The police were called. A thorough search did not turn up the necklace. Both husband and wife gave statements that the necklace was on the cabinet moments before the satellite engineer arrived. The door to the bathroom was next to the door of the bedroom. Moments after he left they discovered it was missing. The man was arrested. He denied the offence but was charged with theft. Again he was provided with Legal Aid for representation at the Crown Court. No doubt he was relieved to be provided with such assistance. And that was assistance provided to an entirely innocent man. Decorators found the necklace behind a radiator in the elderly couple’s bedroom a few weeks before the trial. A man who had never been in trouble had simple been in the wrong place at the wrong time. Circumstances conspired against him. Should he have faced those circumstances alone? Should he have paid for his own defence? Should he have had a lawyer assigned to him by the state of only “acceptable” quality?

My final example is a man I represented. He was a retired engineer. Later in life he and his wife had a daughter. It would be fair to say she was the apple of his eye. She went to university. Whilst away from home she met and fell in love with a man. Sadly he was entirely unsuitable. Not just in the way that many parents may find a child’s choice of partner not what they had hoped for. This man was just bad news. He introduced the daughter to drug use. He assaulted her. After many anxious months the daughter had the sense to leave the boyfriend and return home. The parents were overjoyed to have their daughter back and set about repairing the damage.

The boyfriend would not give up. He tried contacting the daughter. He began turning up at the family home. The father would bar his way and, after often heated discussions, would send him on his way. On one such occasion the father pushed the boyfriend. The boyfriend produced a knife. A tussle ensued. The father disarmed the boyfriend but the boyfriend kept on coming. In the doorway to his house and fearful of what may be about to happen the father jabbed the knife in to the thigh of the boyfriend. No doubt surprised by the level of resistance the boyfriend hobbled away. Straight to the police. He made a malicious statement that told of how the father had pulled a knife on him and stabbed him. The police visited the house and discovered a knife with the boyfriend’s blood on it. Remarkably the father was charged. He had a trial. He was acquitted. All due to the safety net provided by Legal Aid.

So whether it be by scientific negligence or paperwork error, whether it be by a genuine and honest belief mistakenly held or malicious falsehood innocent people can find themselves facing a criminal court. It matters not whether they have never been in trouble before. Of course such examples are at the extreme end of the spectrum. For every one like that I have witnessed I have represented dozens of repeat offenders who are guilty. And there are those in between. People who would never have thought they would be before the courts but end up there because of a combination of circumstances, sometimes because they are guilty, sometimes because they have done something wrong but not what they are charged with or sometimes because they are unfortunate to find themselves wrongly accused of crime.

The point is that democracy requires the efficient and proper prosecution of those guilty of crime and protection for those falsely accused. The method of determining which category an accused falls in to requires them to be represented. It is not possible before the process commences to determine those who are deserving of assistance because they are innocent and those that are not because they are guilty. That is why we all have an interest in maintaining an effective provision of criminal Legal Aid. Like all safety nets you hope you never fall in to it. Should the unexpected happen you would have every reason to be grateful that it catches you. The professions can work with the Lord Chancellor to provide further savings. But he has to place the preservation of this vital aspect of society at the forefront of his approach. Not the current attitude of seeking to turn public opinion against the system and those toiling within it. Legal Aid is something which the nation should be rightly proud of. I believe that they are.

If you agree that criminal Legal Aid is a vital component of a civilised democratic society please sign the e-petition here. Thank you.

A plea to politicians

The Coalition Government have launched a consultation on 9th April 2013 to last until 4th June 2013 entitled “Transforming Legal Aid”. The document makes it clear that the purpose of the consultation is to consider the shape of a procurement scheme based on Price Competitive Tendering for criminal Legal Aid. It makes it clear that the principle of PCT is not for debate, simply how to implement it. The stated intention is to save £220 million. The document indicates that the intention is to reduce the current number of providers of criminal representation from 1600 to 400. The right of an individual to chose their representation will cease. Clients will be allocated to the lowest bidder for the contract for legal services with scant regard to competence or dedication to quality advice.

The document also introduces proposals to alter the fee scheme for advocacy in the Crown Court. The current rates payable for advocacy in the Crown Court were set by an independent review (The Carter Review) in 2006/7. Since that time the level of remuneration has been reduced by something approaching 25%. The current proposals seek to reduce the levels of remuneration by a further 20%. There are a number of detailed proposals but some of the more noteworthy suggestions are that fees are tapered to reduce the daily attendance fee on trials. This is based on the unfounded idea that it is the advocates who make trials overrun rather than competent advocates in fact ensuring the process is efficient. This tapering of fees means that counsel will be expected to attend court for £14 on day 40 of certain trials. We see no profession in the country who face such a disproportionate cut in income due to the austerity measures applied by government.

This is an important issue in which politicians have to take the lead. One can readily understand that there is little electoral currency in being seen to be on the side of criminals. However the dismantling of the criminal justice system is of great social significance. The electorate as a whole would wish to see dangerous criminals safely convicted. The latest proposals will drive talented lawyers and advocates away from the field of crime. This diminishes the pool of skilled advocates in a position to prosecute cases such as Shipman, the Wests and the current case of Cregan. The safety of those convictions rely upon them being the result of a trial which is an equal contest between well prepared and highly competent advocates. The lessons of America where there are scores of appeals based on inadequate representation must show us that the costs caused by such appeals can only escalate where the state provides such a base level of defence representation.

There are many reasons why this is an issue which will affect the citizens of this country beyond the impact upon them as potential victims of crime. By way of example, if the current proposals are adopted there will be 37 contracts for the Greater Manchester area. The consultation document hopes that the economies of scale produced by reducing the number of providers will lead to cost savings. There is no evidence to support the view that this will ultimately save the Government money. This means that those which are successful in securing such contracts will not have local offices. Should the solicitors currently providing criminal representation on the high streets of the towns and villages in Greater Manchester not succeed in securing a contract then anyone looking for such advice will have to travel to the office of those that do. It is highly unlikely that such contract holders will open satellite offices as this extends their overheads. High street solicitors losing their ability to undertake publicly funded criminal work will significantly impact upon their viability. It may well be the case that a firm of solicitors will undertake a wide range of work in the community ie Family Law advice, advice as to wills, conveyancing, employment advice and personal injury claims as well as criminal advice. It is often the case that these areas mutually support one another and that the removal of one source of income will adversely affect the overall economic sustainability of the particular firm. There will be redundancies and there will be firms that close. Some high streets will become deserts for legal advice with no local access to justice or any assistance.

One of the things that surprised me when I entered the profession was the number of people of good character that we represent. These are often people who are hard working, decent individuals who would never have imagined they would be before a criminal court. Some of them have made errors in their life which lead them to appearing in court. Others are there by a coincidence of circumstance. Some may be there as a result developing mental health issues. Some may be entirely innocent of all wrongdoing. One thing is clear, ask them if they had ever imagined in the past that the would require the safety net provided by publicly funded criminal defence then they would have said “no”. Ask them the further question whether they are glad they did and we are sure they would be eternally grateful.

It is not far fetched that one of your constituents could within the next twelve months have every cause to be so grateful. On their journey home from work one night they may be travelling at 37mph in a 30 zone. They may not realise it is a 30. They may just be speeding, as many otherwise law abiding people do. In addition to their slight misdemeanour of speeding they may be momentarily distracted by thoughts of work that day. In that split moment someone walks in front of their car without looking. Tragically the pedestrian, albeit substantially at fault, dies. After many months of considering expert reconstruction of the accident including calculations as to speed the Crown Prosecution Service decide to charge that motorist with death by careless driving. Your constituent, finding themselves in that position would positively demand that he has a free choice of lawyer to represent him/her. He would not want a lawyer allocated to him based on a roster. He would not want that lawyer to have their advice coloured by the fee that is being paid. He could not afford to pay for the costs of a Crown Court trial including the instruction of experts from his disposable income. However the State are proceeding against him and seek to secure a conviction which may lead to his disqualification from driving and, more devastatingly, his imprisonment. Such a scenario is not fanciful. Legal Aid is not the same widespread safety net as the NHS or benefits, it only costs a fraction of those services, but it is one of the vital safety nets which provides valuable assistance to members of the electorate who may not appreciate they will ever have to rely upon it.

This is why it is an area where politicians have to take the lead. It should not be a debate clouded with rhetoric about fat cats or human rights lawyers complaining that prisoners should have softer mattresses. Members of Parliament should do all they can to protect one of the cornerstones of our democracy. It would be a national disgrace if we were to allow the criminal justice system to disintegrate before our very eyes.

The proposals concerning fees will drive people away from criminal advocacy. These are highly skilled practitioners with skills which transfer readily in to other areas of law. The Government needs to be very wary of the talent drain that these proposals will produce. Additionally the Bar has strived for many years to attract candidates from a variety of backgrounds. There was a time when the Bar and therefore the judiciary was populated by white public school educated males. These proposals will impact adversely on the diversity of both professions.

The introduction of PCT will have a devastating effect on access to justice. Not just for criminals but for those wrongly accused of crime and those seeking assistance in other disciplines. It will produce individuals and corporate entities who are only involved in the administration of justice in order to maximise their profit. The reduction of the number of providers will simply place certain organisations in a position of dominance in the market place which will only serve to provide difficulties in controlling costs for future generations.

These fundamental changes can be introduced without the need for primary legislation and a debate in Parliament. No one should stand by and let this happen to a justice system of which we are rightly proud.