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.


  1. You're preaching to the converted here.

    Please share the blog on Facebook, Twitter etc and e-mail to newspapers.

  2. This needs distributing well, an intetesting read.