Monday, 27 April 2015

The Tuesday Truth

Diary of a Higher Court Advocate
by Alexia Nicol Solicitor at Edward Fail Bradshaw and Waterson
As I sprinted out of the door to head to the police station last week, the fateful words ‘Have you seen the email with the listing?’ were politely hollered in my direction.  I had not. 

The joy at 15.59 of hearing that your warned list trial has made an appearance in tomorrow’s listings, delightfully transferred from a local court to the Old Bailey, is a special one.  With the added bonus of knowing that you need to finish at the police station swiftly otherwise preparation will be well in to the small hours.

The distressed client at the police station didn’t need to know this.  He didn’t need to know it would take me at least an hour and a half to get home on public transport before I could even begin to tackle my trial preparation.  He just needed to know that he was going to receive solid legal advice and a representative who would do their best to protect his interests.  Fortunately, it was a straightforward theft.  Unfortunately, the Complainant was the partner of the client.  Not a unique position to be in, but he was also her carer and the only person who could look after her that evening.  His concern was for her well being.  He presented no physical risk to her, (he had borrowed her car without asking). Not ideal but neither was her being left bed ridden without care.  It took some time to make representations to ensure he could be released to tend to her following charge.  It was important that these representations were made for him and also for her, she wanted him home. 

I finally got home and began the trial preparation. I spent the next few days at the Old Bailey fighting legal argument fires and generally guiding a young man through a difficult trial with a vulnerable witness.  Every so often I would catch him looking at the marble floor and the statutes, feeling very out of his depth.  The trial should never have been listed as a floater, should never have been transferred to the Old Bailey and the Judge knew it too, referring to the listing repeatedly.  Too late for the witness who had stress induced fits when  told at short notice the case would be heard there, with no court allocated and no real reason for this explained.  He required professional and careful cross examination.  I had to balance properly putting my client’s case whilst being as swift as I could.  The witness had been waiting all morning and his condition was of concern to Matron.  Matron provides an invaluable service.  Never have the words ‘Two paracetmols and off you go’ meant so much to smooth running justice as when said by Matron.      

The week was rounded off with a busy Central London scheme.  I represented a duty client who was outraged at being arrested for shouting and spitting at his son (a boy in his early teens).  The client strongly denied the allegation. It was a strange and unhappy coincidence that the allegation made was closely aligned to the way  he behaved at the police station.  In consultation, he began by shouting loudly and repeatedly at me.  Eventually I was able to calm him down enough to be able to advise him properly.  As I sat, sagging slightly in my chair at 2am, the interview drew to a close.  The client took a dislike to the officer and demanded some fresh air.  As he attempted to leave the interview room, he squared up to the officer and began to shout in his face.  I am sure the officer also found the coincidence striking.  I was able to calm the client down and deal with the rest of the case as best I could without any further incident.  Apart from a heated goodbye (can you believe he shouted at me, again?!) when I had to leave because there was nothing more that could be done until a decision was made.  This was not a client who would appreciate an explanation of fixed fees and the need for me to finally end my day of work…

It was a fairly standard week.  To be honest, a trial at the Old Bailey is always a treat.  Having been a HCA for years now, I am perfectly content at the Crown court.  I caught up with both barristers and HCAs I know well in the robing room and we all generally bemoaned the state of the system, shared horror stories and offered advice on thorny issues.  I grabbed the odd cup of tea in the Bar Mess and perhaps as a throw back to my clerking days; part of me still wonders if I am really allowed in there.  Whilst things have changed massively from when I first donned a wig, occasionally you meet a barrister who eyes your gown with suspicion, laughs too loudly and might as well say ‘some of my best friends are solicitor advocates’.  For what it is worth, having now committed myself to advocacy pretty much full time, my view is we all have a job to do.  It is hard and it is stressful and the rewards feel scant.  We are all doing what we can to get through these tough times, but the reason we do it is because people deserve proper representation.  I don’t care what shape your gown is, if you can do the job that is what matters.  I would like to think most professionals agree.

When I began my career in criminal law, I do not think I ever imagined my working life would be like this.  That it would seep effortlessly into my evenings and weekends.  That I would earn slowly less and less money for doing more and more work.  That skill and experience is rarely rewarded in any real sense other than the warm glow of knowing you have secured the right result for a client.                                                                                                                                                                                                 

I remember telling people when I first started my training contract that representing these people was a privilege.  That I get to see them in a way most people do not.  I see the person behind the charge sheet and can have some understanding into why they have ended up needing legal advice and I can hopefully help them through what one of the hardest times of their lives.

If dual contracts and further cuts come in, I am genuinely concerned that there will be no one left to care.  That the innocent, the vulnerable and the addicted will be left to face the might of the State alone.  That simply can not be.  We’re all taught that ‘crime does not pay’, but if that includes the skilled lawyers then it is really is the beginning of the end of fair and proper Criminal Justice in this country. 

Alexia Nicol

Monday, 20 April 2015

The Tuesday Truth

This week's Tuesday Truth is by retired Crown Court Judge and former defence Solicitor Barrington Black

1956 is only 60 years ago, to me it seems like yesterday.  How does the song go? … “Sunrise, Sunset, Sunrise, Sunset…  Those 60 years have passed very quickly since I first practiced Law, and never, ever, did I dream that I would witness the profession and it’s practitioners being treated in such a disdainful manner by the Government, and particularly by a Conservative government.

They have acted like a destructive, revolutionary band in some third world country whose aim is to destroy law and order by striking at its proper administration.

Warning bells should have rung out the moment David Cameron appointed, for the first time in the history of this country, someone who arguably did not fit the required description given for such office in Section 2 of the Constitutional Reform Act 2005. 

In the course of discussion on that bill, Lord Phillips clearly stated

“If you have a Prime Minister who believes in the importance of the Rule of Law, one would hope he would appoint someone who already has a standing, and is likely to perform the role of a guardian of the Rule of Law and judicial independence”

Christopher Grayling has acted like the sales manager of some minor copying paper company giving pep talks to his salesmen, rather than the head of an historic, world respected judicial administration.

When I began practice the 1949 Legal Aid Act was beginning to take effect in a progressive and efficient manner.  It replaced Dock Briefs and the Poor Mans Lawyer, and the various ad hoc systems attempting to arrange representation for those who needed it.

The original system depended on a generous or otherwise Magistrates Clerk, payment was frugal, but advocates took it on as a means of advancing their experience.   The local Law Society then administered it, and gradually criteria for its grant and payment of fees developed.

Above all, it worked.  There were few cases of fraudulent attempts to enhance payments by practitioners, in fact I cannot think of any, we were trusted, and the Law Society had a canny skill in separating the sheep from the goats. Those who were inefficient, and who delayed things did not profit by it because such tactics became self-evident.

Unfortunately though, as time passed by, some practitioners became greedy and tried on the Oliver Twist syndrome, the very high cost claimants contributed to a degree of confusion. For whether a case is complicated or otherwise the criteria surely had to be whether more time was spent in dealing with it, rather than the extent to which it stretched the mind.  Counting of sheets of evidence inflated claims, but much of this could have been avoided by stronger judicial control.  Eventually that control was becoming the norm.

I certainly had no complaints, and considered the rate of pay reasonable.   I believe that the service, which I supplied, was appreciated, and although it involved long, and often unsociable hours, it was a profession, which I had freely chosen.

I firmly believe that the problems in recent years have come about by political and in some cases judicial interference, by those who have never had the experience of being called out in the middle of the night, by people who have never entered a cell in a police station or prison and sat at a table opposite someone facing what for them was a terrifying prospect, all the more so, as did happen from time to time contrary to popular belief, someone who is completely innocent. Nor have they been consulted by someone facing a lengthy and time consuming probe by a prosecuting authority and facing the prospect of selling their own home in order to achieve adequate representation.

Whilst on the Bench, and until the recent draconian cuts, I had the satisfaction of knowing that those in front of me were well represented by the system, That once granted Legal Aid, if they could afford to pay for their representation then they would be able to obtain immediate representation for the hearing, and later, if necessary I could make a repayment order towards legal aid.      I shudder to think about the disruption which may now ensue from so many unrepresented defendants, and the expense which will be caused by delay and protracted hearings. 

Perhaps I reached the age of 75 at the right time, and compulsory retirement was necessary, but when four years later I was invited to Gibraltar to deal with a backlog of crime, and found there was no effective legal aid system, in the first week facing an application in a multi million pound fraud with three defendants whose assets had been frozen, I adjourned the matter for two weeks and asked the Government there to bring in a legal aid system which had been waiting in the wings.  Happily they did so, and the case could proceed…. Or so I thought.   Alas there were delays because practitioners, from this country, did not believe they were being paid enough.

I mention this because it is all too easy to become the authors of our own misfortune and all too easy for all lawyers to be tarred with the same brush.

My concern is for the little man, the high street practitioner, the young counsel finding his or her feet, the solicitor and barrister  who have chosen this socially conscious branch of the law. , Lawyers who in effect are the first line of defence for the person who needs help.   And let us remember these lawyers are the ones really needed by the   “hard working taxpayer ” whom politicians claim they are striving to help.

And in their turn these lawyers are, one hopes, the judges of the future because they are the ones who appreciate the problems of the working person rather than those in other realms of the law whose briefs are marked in thousands, rather than the small change this government grudgingly offers.

A message from the LCCSA/CLSA

As you may know, Sir Alan Moses, Shami Chakrabati, Helena Kennedy and Ian Lawrence are part of a panel of speakers who will be addressing a rally in London on Thursday 23rd April at 2pm, and the national press are expected to be in attendance. This rally is not about two tier (two tier will come in if the Conservatives return to power, it won't if Labour succeed). This rally is about access to justice. It is about the fact that legal aid is important and that the public agree with this. The rally is about uniting the profession and saying to every political party that times have changed and we are no longer prepared to sit back and take whatever change they decide to make. We are currently underpinning a crumbling criminal justice system. We constantly make up for the failings of the court and the CPS with very little fuss. We cannot allow this to continue. No other profession would make the allowances and the concessions that we do, most of the time at personal cost.The rally needs to be well attended to send out a clear message. It really isn't too much to ask for firms and barristers chambers to send a representative to London as a show of support. Yes, it means one person out of the office or court for a day; yes, it means £12 for the ticket; and yes, it means the cost of a rail fare. This really is nothing when you consider the importance of such an event.

Please, please do not ignore this and please show your support to help us change things in the future.  Book a place now!






Tuesday, 14 April 2015

The Tuesday Truth

This week's Tuesday Truth is written by Rhona Friedman, Paul Harris and Ali Parker

So long, farewell, auf Wiedersehen, goodnight…? 

John Haythorn is a Partner at Woolcombe Yonge Solicitors in Plymouth. He has been a partner since 1982 and is Head of the Criminal Department. His firm have served the local community for many years and John still gets up on a Saturday morning to act as Court Duty Solicitor. He continues to cover out of hours police station work.

On Thursday 9th April John had a visit from Gary Streeter the Conservative candidate for South West Devon who is standing for re-election to the seat he has occupied for the last 5 years.

It did not take Mr Streeter very long to realise that he could not count on the vote of John Haythorn bearing in mind the sustained attack on access to justice that his government have mounted over the last 5 years which has had a profound effect on Mr Haythorn’s firm.

Mr Streeter’s parting words were that there was going to be a Labour government and that “Hopefully they will look after you better.”

John Haythorn told Tuesday Truth “I was very surprised bearing in mind the campaign was only two weeks old, it was incredible to hear an MP of one of the two major parties conceding defeat whilst canvassing”
 Does Mr Cameron realise that at least one of his MPs expects Labour to win the next election, do others feel the same? It would be unsurprising if the Tory attack on essential services was not translating into difficult conversations for Tory candidates on the campaign trail.  

It is not just lawyers who are much more likely to vote against this government. Many doctors and teachers feel exactly the same. Retirement levels in the National Health Service are high whilst recruitment is apparently at an historic low. With an ageing and expanding population and the barmy introduction of the internal market and rip off PFI schemes the National Health Service has never been under more pressure. Suddenly as an election looms Cameron talks about investment in the Health Service too little too late and to be funded by as yet unidentified cuts elsewhere as George Osborne has ruled out an increase in taxation.

Many in the public services including legal aid lawyers are now looking to what Labour or a progressive alliance of Labour and others can offer which brings us to last week’s launch of Labour’s Crime and Justice initiative. The proposed programme is outlined in the pamphlet 'A Better Plan to Secure Safer Communities"
Labour's disappointingly short section on the justice system begins:
"Our justice system relies on a fundamental principle: confidence"
Stirring words? Not so much.  'Confidence' is not a principle at all. It is a feeling. At
that stage, some cynics and lovers of English as she is wrote may have stopped feeling confident.
However, there are some promising aspects to the programme. Former DPP Keir Starmer QC, Labour's rising star has said that Labour must review all the legal aid cuts
within one year of taking office.  What those who care about our justice system ask of Labour if the party wins power is that this review is comprehensive and that all agencies involved in delivering justice must be involved in an intensive engagement process. The review must examine the damage to our rule of law that has been wrought through the assault on access to justice which has only served to increase social inequality and has not even achieved the Tories promise of savings because costs have merely been displaced on to other parts of the courts, prisons and social welfare budgets.
Then there is the 'Victims Law' co-authored by Keir Starmer which is to include a right to review dropped prosecutions.  It is of course right that victims’ interests are properly served by our justice system, the concern for victims appears genuine but this concern  cannot be allowed to undermine fair trial rights that are at the very heart of our adversarial system.
As has been said in this blog before the best way to protect victims’ rights is not to promote them in binary opposition to the rights of the defendant. A properly funded and resourced criminal justice is the most effective way to promote the interests of those who are the victims of crime.
The proposal to brief witnesses as to the detail of the defence case which is seemingly a part of this “victim centred “approach is an affront to the interests of justice. The underlying assumption that every single witness and complainant is truthful and fair-minded is a fantasy that only political pamphlets and CPS rookies engage in.  Those politicians and lawyers who champion this idea are recklessly underplaying the vast coercive powers of the state which no defendant and no defence team can ever hope to match. That is why the system evolved to embed safeguards to ensure equality of arms. That level playing field is being dug up from under us by the twin assaults of legal aid cuts and rampant managerialism which is already skewing the fairness of proceedings and resulting in perverse decision making in which the self defeating mantra of “case progression” is now routinely trumping the proper interests of justice.
This government has carried out a sustained assault on education, National Health and Access to Justice under the false premise of austerity. But those people who have devoted their professional lives to the public services have not given up the fight and their continued efforts to take the fight to the government and to enlist the help of wider society have not gone unnoticed.
On Monday the Guardian published the results of a YouGov poll which found that 82% of the respondents believed that access to justice was a fundamental right

On the same day the Guardian helped to launch Legal Aid Team! An animation celebrating legal aid and lampooning its enemies voiced by amongst others Maxine Peake, Joanna Lumley, Sally Hawkins, Simon Callow and Kevin Eldon.
Next week on 23rd April we have the Vote for Justice Rally.

We have had two and a half years of meetings, walk outs, demonstrations, lobbying, briefings and legal action. On May 7th we get the chance to send another kind of message to the government. Many of us will be voting with issues of access to justice and the rule of law firmly in mind when the X goes in the box.   Do come along to the Vote for Justice Rally to discuss what happens after the votes are counted because whatever the composition of the government we will still be confronted with a criminal justice system which is less and less able to ensure a fair outcome and a civil justice system which since April 2013 has been engineered to deny millions of people representation and redress in court.




Monday, 6 April 2015

The Tuesday Truth

The author of the excellent piece below wishes to remain annonymous in order to ensure there is no possibility of the clients she refers to being identified. I am extremely grateful to the author for the frank and detailed account provided of the work that Solicitors do and the description of the truly depressing state of our Justice System.

A week in the life of a Criminal Solicitor
My week started on a Sunday, although it's hard to define where one working week ends and another starts when you are a criminal legal aid solicitor.

Sunday night was spent preparing a trial for the following day. This wasn't a case that required preparing the night before because I hadn't bothered looking at it. On the contrary I had spent the last two months trying to resolve the legal aid situation for the client who was "self-employed", which as any criminal solicitor will tell you is their worst nightmare when it comes to legal aid applications. Notwithstanding the fact that he had provided the Legal Aid Agency with everything he possibly could in view of the fact that his business hasn't yet been trading for twelve months, they hadn't managed to consider the final submission. The client was left with three choices; represent himself, pay privately or apply to vacate to continue with his quest for legal aid. The client chose to pay privately - confirming his instructions on Friday night. As any experienced defence solicitor will tell you they don't expect to have a weekend free of working and all this meant was preparing a trial over the weekend. This case involved two assaults on two complainants; a s39 assault and a s47 assault resulting in four staples to the back of the head. Two complainants, two independent witnesses and a handful of police officers. Nothing untoward aside from the fact that neither of the statements for the two independent witnesses had been served despite them having been identified as "live" witnesses. They also appeared on the schedule of unused material as having "refused to provide an account".

Fast forward to Monday morning and a 9am meeting at Court with the client followed by the taking of a statement of the defence witness who had also attended. At 9.45am I spoke to the Prosecutor to confirm that we were ready to go and that the two complainants had attended. Her reply was "yes and the independent witness". She then proceeded to tell me that one of the males identified in their live evidence list had attended court. I asked her for his statement and she told me there wasn't one. I showed her the unused and she said she had no idea why or how he had turned up at court.  She told me she was willing to press on and call him without a statement. I told her I wasn't. I told her I would need to see the endorsement in relation to his refusal to provide a statement and would need to know what had happened in the last six months resulting in his attendance today.  Needless to say the case was put to the Magistrates who agreed that it couldn't possibly be in the interests of justice to proceed with the trial today. All in all a waste of time for everyone.

I returned to the office and was quickly spotted by a colleague who had been covering a trial on my behalf that afternoon. Of course there would be no reason why I couldn't now cover that with my first trial having been adjourned.  My second trial was something that had previously been listed twice in January. The defendant, a man of good character, had been charged with the harassment of his former partner with whom he had two children. The case against him was twelve text messages sent over fifty eight days all requesting contact with his children. No threats, no name calling, nothing abusive or aggressive at all, simply requests by a father to see his own children. The complainant's evidence was that she had not responded to any of them. She had never told him to stop sending them nor had she made any arrangements for him to have contact. He had never been warned by the police.  The defendant had since returned to France where he lived. Letters had been sent to the Crown inviting them to review  the case on a number of occasions, they had never responded.  The first trial had been listed on the 27th January but the interpreter's car had broken down and another one could not be located.  The defendant had flown back into the country for a trial that now couldn't take place through no fault of his. The court adjourned the case for two days and said that they would open a court specifically for the trial.

Two days later the defendant re-appeared and the court and the prosecution couldn't accommodate the trial because of over-listing and so the matter was adjourned until today. I attended at court and spoke with the prosecutor to ask whether they had considered the case in light of my correspondence.  They had but had decided to continue and hadn't bothered to respond.  An interpreter had attended and with a District Judge in place we were ready to go.  The prosecutor then decided to ask to amend the charge to include a further date, I objected and the District Judge refused the application.  The prosecutor then applied for special measures, out of time and on the basis of a highly prejudicial application that was akin to a back-door bad character application on a man of good character. I objected and the District Judge was furious with the application, describing it as "flowery and emotive".  Notwithstanding the conduct of the Crown she allowed screens.

Eventually the trial started. The complainant gave evidence. During cross examination I asked  what efforts she had made to resolve contact issues. She told me that she had been to see the Family Court who told her that she couldn't do anything unless there had been harassment or violence.... When were you given this advice I asked her? July last year she replied. Her statement to police was dated the 21st July 2014. Was it before or after your statement to police? I can't remember. So there we had it, an allegation of harassment, which wasn't harassment all made because she couldn't resolve contact issues without him having been convicted through the criminal courts. A point accepted by the District Judge and the case resolved quickly by way of a submission, an application for costs from central funds (no legal aid and privatley paying) and a failed application by the Crown for a restraining order.

Tuesday brought me some respite from Court. I spent the day preparing for the three other trials I had listed over the next two days. I saw clients in the office and fielded numerous phone calls in other cases.

Wednesday was another day of two trials. The first, again without legal aid, involved a woman of good character (with a law degree) who had called 999 because her husband (who had broken her nose in 2009) had been aggressive and wouldn't leave her alone. The defendant managed to get away from him and shut herself in the study to wait for the police.  An officer attended and the husband opened the door.  The officer asked what had happened and the husband said that the defendant had slapped him. The officer decided to ask the defendant what happened but in the absence of any caution and on body cam. The defendant in a very animated fashion tried to explain and during her explanation accepted she slapped him.  Ignoring all other parts of her account or the fact that she made the initial call, the officer arrested the woman. The husband had refused to make a complaint but she had still been interviewed and charged.

Due to her employment the defendant was not eligible for legal aid.  The case had previously been listed for trial and she had attended unrepresented.  The court had been intent upon pressing ahead but had told her to speak to the Duty Solicitor which she wasn't entitled to as the matter was listed for trial.  I was in court and briefly considered matters on a pro bono basis. I advised her to apply to adjourn the trial to instruct a solicitor. I advised her to explain to the court that primary disclosure had only been sent to her three working days earlier.  I made the decision not to apply for her as my goodwill extended only to her as opposed to the court. She applied and was refused.  She was sent back out of court to read the papers. She told me what had happened and so I spoke to the court clerk about my concerns and about the potential for appeal and judicial review. Unsurprisingly the court clerk found that they had 'insufficient court time' and so it was adjourned to a new trial date.  As is usual with defendants she left it until two weeks before the trial to instruct me. I considered the evidence, took a statement from the client and then wrote to the Crown indicating that I believed the "admission" and the body cam footage to be inadmissible. They didn't respond. I attended Court for the trial and explained my concerns to the prosecutor who agreed and said she wouldn't rely on it. The case proceeded to trial and it took the Magistrates less than five minutes to acquit. Another application for costs from central funds and another waste of everyone's time.

Back to the office to prepare for something I had listed as a trial that afternoon. Another domestic assault with another client who was refused legal aid and couldn't pay privately. In this case a s36 direction had been made and so I would be paid for cross-examination only. This was a complicated case with two allegations, one involving a bite. I attended court to be told that the complainant and defendant had arrived together. The complainant had been the subject of a witness summons after she had made a retraction statement which had never been served. In actual fact the existence of the retraction statement only came about because I made an educated guess just as the trial started. The prosecution hadn't of course bothered to print a copy off and so I was forced to consider it on the laptop.  The prosecutor was ready to proceed with the complainant as a hostile witness. The cross examination was therefore far more complicated than normal, there were tears and a break to allow the complainant to compose herself. I was then faced with the dilemma of whether to remain and conduct the rest of the trial pro bono or leave. On this occasion I left. I returned to the office feeling frustrated that I couldn't do more but I had appointments in the office and further case preparation to do.

Thursday morning saw me at the Crown Court in my capacity as instructing solicitor to a barrister. I attended knowing that I wouldn't be paid but because I felt for my client. A single mother of good character facing imprisonment for an offence of blackmail. A stupid moment of madness actually brought on by a twisted notion of morality. She had been before the Court the previous week with her co-accused. They had come prepared for sentence having told their children that they wouldn't be coming home and with social services waiting in the wings. Unfortunately the sentence hadn't gone ahead because the probation officer was on sick leave and the report hadn't been typed. The Judge was  furious. The probation service requested a further three weeks. The Judge gave them a week. Fortunately the hearing was effective and she received a suspended sentence.

Another afternoon, another trial. This time another allegation of harassment at the end of a relationship breakdown. Both respectable people with a two year old child. A male defendant who simply hadn't coped with the thought of his partner with someone else. No violence, no threats just overly emotional, angry behaviour despite a warning from police. This defendant had contacted me practically every day since his first appearance which is typical of the behaviour of some clients who are totally consumed with worry. It is also something that the fixed fee can  never account for. This case, although prepared for trial was resolved relatively easily with a basis of plea, a fine and a very weak restraining order for twelve months that suited both parties.  The real truth is that this case didn't need to be in the criminal courts and could have been resolved by mediation.

I had much to do before leaving and notwithstanding the fact that most people were leaving the office in good spirits for the long weekend I was still trying to clear my desk. I saw a witness, prepared her statement, updated my files, sorted out a case for the following week and prepared a brief before finally escaping to go home and see my family who I had barely seen all week.

Sadly this is a fairly typical week for a criminal legal aid lawyer. A justice system at breaking point. Two defendants of good character both refused legal aid but acquitted because they should never have been charged in the first place. Delayed cases because of interpreter and probation problems. Unpaid attendances upon vulnerable clients out of a sense of caring and a part-involvement in a case that should have been legally aided. Sometimes I wonder why we bother and then I remember that we do it for the clients. The vulnerable or unlucky defendants all presumed guilty and unworthy by the public who would be treated unjustly if we weren't there to fight for them.