Thursday, 24 March 2016

A modern day Purim Miracle

As court duty solicitor, I am required to represent any defendant appearing at court without his/her own legal representation. On one occasion, I arrived at court, to be greeted by the court usher, who directed me towards a rather agitated orthodox Jewish man, who required my assistance.
“Good Morning” I said to him, introducing myself. 
“I have been charged with drink driving!" he shouted, his voice full of panic. "But you have to understand. It wasn't my fault. It was a religious festival. I HAD to drink!!"
I paused for a moment. Most of my clients claim that it wasn't their fault. Very few blame God.
"This religious festival." I asked. "Was it Purim, by any chance?"
The man, who until this moment had been pacing back and forth, stopped still. He looked straight at me. 
“Boruch Hashem! The Almighty has sent me a Jew to save me!" 
“Not quite." I said. "I've been sent by the Legal Aid Board".
At this point, I began to wonder whether volunteering the information that I was Jewish, and aware of the traditions of Purim, might have been premature. The client, let's call him Mr Mordechai, was insistent that the  police had not given him his own sample of blood to test, which he was entitled to, as he was only just over the limit. So I advised him to plead 'not guilty', and Mr Mordechai began to visit me at my office to prepare for his trial.
And so began a lawyer-client relationship, and a court case, that I have never forgotten, although it happened over 20 years ago now.  During his client consultations, it became clear that Mr Mordechai was much more interested in the particulars of my personal life than on the specifics of his own case.
On many occasions, while I was trying to investigate the details of his arrest, he would launch into investigative enquiries of his own. 
"So Mr Harris. You have children, yes?"
"No" I said. 
"But you live with your wife, yes?”
“No” I said
“Aah” he responded, “You live with your parents.”
“No” I said. "I live on my own."
“Alone!" he said, with tangible concern, “Alone is not good. Listen. When this is over, I will find you a wife!"
On a separate occasion, he asked me for my Hebrew name and he seemed genuinely delighted to discover that I am a Cohen. This did lead to some confusion, however, when he rang the office; I once arrived to hear the receptionist, a stalwart of London's East End, telling a caller "No. You must have the wrong number. There is nobody called Shmuel HaCohen working here". 
Occasionally, he would attempt to steer the conversation into Hebrew, even though mine was quite limited. I attended a six-month Ulpan in Israel after I finished University, so I am able to order a falafel or buy a bus ticket.  Unfortunately, there had not been a lesson on saying "There are in excess of 80 milligrammes of alcohol in 100 millilitres of your blood." 
As a result of these distractions, as the trial approached, I became concerned that Mr Mordechai was not taking the process as seriously as he should. He seemed to be mistakenly of the view that being represented by a Cohen with patchy Hebrew would be sufficient.
At our final meeting before the trial I gave him a series of very strict instructions. 
"Mr Mordechai” I said. “It’s very important that you listen to these instructions. Do not call me Shmuel in the trial process. Do not speak in Hebrew when giving your evidence. And, most importantly. Do not drive to court. If you are convicted, you will be banned from driving immediately. So please, do not drive to the court.”
The trial was listed at Thames Magistrates Court at 2pm. I had advised him to be there at 1pm.
At 1, he was not there.
1:05 - no sign.
1:15 – still no sign
Finally, at 1:25 he arrived.
“Where have you been??” I asked
“It was hard to park” he responded
There seemed little point focussing on his ignoring my advice about driving and indeed his complete lack of acknowledgement that he might be convicted. I needed to concentrate on the matter at hand, and began to run through his evidence again with him before the trial started.
As I was talking, Mr Mordechai interrupted and said, “I think it would help if you gave me the Cohen blessing before the trial.”
“Don’t be ridiculous” I replied.
“I want you to do it. You’re my lawyer. I’m the client. That’s what I want.”
“I don’t even know it” I stated.
In shul, the priestly blessing always makes me feel rather awkward. I wondered what the court clerk would say if I took off my shoes in the court lobby and started chanting ancient incantations. But Mr Mordechai had no such concerns.
“No problem” he said, grabbing my hand, “I will tell you what to say and you can just repeat it”.
And so there I was, outside Courtroom 2 at Thames Magistrates Court. Whilst colleagues and friends were taking last minute instructions, giving advice and checking that witnesses had arrived, I was asking God to ensure that his heavenly face shone with light over my client’s face.
The trial began. The two officers who had stopped him in his car and escorted him to the police station both gave evidence. Although present when the custody officer had processed the drink drive test in the custody suite, these officers (rather conveniently for Mr Mordechai) could not remember whether or not the suspect had been offered his own sample of blood to test.
This meant that the custody officer, who also gave evidence, became a key witness. If we could establish that he also could not remember whether the client had been offered blood, we might have a chance. I was fairly confident. It was a busy police station. There were suspects being brought in and out all the time. It was usually a scene of chaos. How could he possibly remember a single arrest for drink driving?
“But Mr Harris” he said, when being cross examined, “I had been off work for 6 months. This was my first day back. It was my first job. I remember it clearly. I offered him his own sample and he declined. Also, he was dressed as a pirate.”
Things were not going well. But then, the custody officer, seemingly in an effort to promote his efficiency, produced the exhibit label which would have been attached to the blood sent to the laboratory. But the label did not have Mr Mordechai’s name on it. Just a number.
It was incredible. Some might call it a miracle. Suddenly, the prosecutor was in a panic. Unless he could demonstrate that the number on the label related to my client, he could not prove it was his blood and, therefore, could not prove the case. The prosecutor, in a desperate attempt to save his case, asked to recall the two officers who had already given evidence, in the hope that they could confirm that the number on the label did indeed relate to Mr Mordechai. I, of course, objected, on the grounds that their evidence would be tainted by the discussion they had just heard in the court. There was a rustling of papers and whispered panicky conversations between the prosecutors and his team as they frantically sought to save the case. And all the while, Mr Mordechai sat in the dock, oblivious to what was going on, gesticulating to me and asking when he could have his say.
Finally, the judge turned to me and said, “Do you agree that the prosecution have not put forward any evidence that the number on the label relates to your client.”
“I do” I said.
The judge continued, “And do you submit, Mr Harris, that I have not heard evidence that the blood exhibited was definitely your client’s”
I needed no encouragement to agree.
“Do you therefore submit, Mr Harris, that there is no case against your client?”
I agreed and the judge dismissed all charges.
Stunned, I turned to Mr Mordechai, who was still sitting in the dock, without any clue as to what had gone on. I went up to him and said “It’s over. Case is dismissed. Let’s leave”
“I have not had my say” he responded with indignation. “I want to have my say!”
“Forget that. Believe me. It’s not going to get any better.” 
As we left the building, Mr Mordechai gave me his advice and I gave him mine.
He said, “In view of what just happened, I presume you will now become more religious”.
I replied, “In view of what just happened, I presume that next Purim you won’t drink and drive”.
He thanked me for my hard work and then, as he turned to leave the court, smiled and said “On Simchas!”
We have not met at any simchas since.

Tuesday, 1 March 2016

THE TUESDAY TRUTH – 1st March 2016

 By Greg Powell

Après La Débacle

La Débacle, a novel by Emile Zola published in 1892 deals with the humiliation of the French Army by Prussia 20 years earlier.  Fast-forward almost 150 years to another process that merits that description, the LAA/MOJ Débacle known as Two Tier Contracting which always appeared a project too far and too complex for the administrative resources of the LAA and so it proved. 

The costs of course, in cash expended, time and emotional and financial uncertainty are inevitably again borne by and within Solicitors firms.  In the highly lopsided world of contracting the LAA has imposed a series of disasters upon our profession, staggering from one PCT to the next BVT to the next tendering apparently without any “lessons learned” period of quiet reflection. 

All of which obscures the much greater and compelling truth which is the pauperisation of rates of pay which coupled with aggressive managerialism and the delays of means tested applications leads to defendants and their lawyer’s everyday facing pernicious choices.  Plead or not, lose credit or not, act and advise without certainty of a Representation Order or the evidence – “your client knows what he did”, Judges turn blind eyes to the practical realities of Solicitors and Counsel litigating cases. 

So, in January 2017 we are to have a new version of the contract. The fiasco of 2 Tier provides the context therefore for a number of questions:

How are 24 hour police station duty slots to be allocated?

Is there substance to the endless anecdotes that scheme lists are littered with “ghosts” (the retired, the dead, the abroad, the conveyancer, the “he never actually goes to the court” etc.)

Is London different, (as the LCCSA have contended for the last 20 years) and is there an issue concerning the number of schemes for which any solicitor is eligible? 

Should allocation in London be based on boroughs or criminal justice areas?

How are change, closures of courts and police stations, to be accommodated within the arrangements?

What of the contractual position of freelancers?

What should be the criteria that qualifies a person to be a Duty, maintain that membership and which is verifiable by a newly proactive LAA?

What of “touting”, payment for cases and other malpractices?

My own view is that simplicity has huge advantages to sides, solicitors and the LAA.  That a period of calm and certainty would be welcome.  That the real debate should be about rates of pay. 

Two basic models feature in proposals, the events based and hours based.  It is possible to invent hybrid versions but immediately complexity and that incurable tendency of bureaucrats to tweak and twiddle comes to the fore.

Events Based
The present system is events based.  A minimum number of magistrates’ courts and police stations attendances per year.  It seems it is the intention of the LAA to actually “police” a future contract with the beneficial side effect of dealing with the ghost problem.  Being a Duty Solicitor means possessing a skill set.  People in court and police stations benefit from experienced and skilful people representing them and it would be a hope that the arrangements would encourage Duty Solicitors of experience to actually do police stations and court duties. 
On that basis, and having a very watchful eye on the necessity for a simple and verifiable scheme that has the least administrative and cost burden, I favour a basic minimum requirement that has come to be known as 4x4. 
A basic requirement that a Duty Solicitor actually does four court duties per year and four 24 hour slots (evidenced by records of attendance, cases dealt with, all objectively verifiable by reference to the court and custody records).
This might be a part of a larger set of police station and court attendances e.g. 12x12 but the merit is in the DOING directly related to rota membership.
Hours based schemes are more complex.  So many hours per week doing criminal litigation with alternative of per month and a minimum per year (e.g. 17.5 hours per week or 350 per year) are not usually related directly to duty work. 
There are also issues for freelancers which revolve around the hours to be completed for the firm to which they are primarily attached (who receive the duty slots).
These schemes are advanced in conjunction with the other very contentious issue called “Breaking the link”.

Pursuing the theme of simplicity (avoiding litigation) and minimal administrative burden I favour a continuation of allocation of duty slots in the names of Duty Solicitors.  It is simple, appropriate and transparent.  Coupled to the event based 4x4/ plus (as above) it is a well understood workable system. 

Others – Break the Link
Another view currently advanced is a new form of allocation based on a firm’s historical volume with some tweaking or adjunct to try and ensure that a firm with ghosts is not over rewarded. 
This is, for those who are especially keen on 2 tier, another method of achieving allocation without any link to named Duty Solicitors.  However we have been here before in an MOJ consultation some years ago.    I am certain any attempt to use history as a basis has all the potential for complaint, litigation, delay and then abandonment that 2 tier had.   “My allocation is based on the wrong statistics, that police station closed, this is unfair to new entrants and so on”.
So let’s keep to the non-litigated familiar allocation that works, keep the link, be events based, be transparent and create workable minimum compliance criteria which lead to transparent easy verification.

Let’s not forget the much more compelling issues, low rates, nothing for travel and waiting, nothing for Sendings and S.51, and nothing for the factors that make litigation so difficult, clients who are vulnerable, have mental health issues and are in custody. And whatever happened to London Weighting?
I would need another Tuesday Truth for London as a uniquely complex challenging space. 
Above all let’s try to avoid another Débacle. 

There is a LCCSA meeting on 7th March 2015 at 5.30pm at the Law Society to discuss these issues.  All LCCSA members welcome. Please notify the administrator in advance so as to reserve a place.                                       .