Guest Post by CrimeGirl: The fallacy of the fat cat legal aid lawyer

In the coming months, the tabloid “fat cat legal aid lawyer” staples are likely to re-emerge and recur with a vengeance, following the Ministry of Justice’s plans to slash legal aid fees paid to criminal law solicitors. In the din of misinformation that will be honked out by the MoJ to distract from the legal profession’s concerns, the truth may become estranged. This could have devastating consequences. If you are wrongly accused of a crime, your guiding light will most likely be a legal aid solicitor. Their importance to the functioning of our justice system is shamefully overlooked and underreported.

The Secret Barrister is proud to publish this exclusive guest post by barrister, former duty solicitor and fellow anonymous legal commentator, CrimeGirl (formerly DefenceGirl), who explains the reality of life for solicitors on legal aid.

 

@DefenceGirl

@CrimeGirl

One of the basic tenets of the Criminal Justice System in England and Wales is that every person being interviewed under caution by the police, no matter how rich or poor, is entitled to free and impartial legal advice.  As I used to tell my clients, even Richard Branson is entitled to free representation in the police station.

For each case the Legal Aid Agency pays the lawyer a fixed fee.  Those fees vary for some nonsensical reason depending on the location of the police station (or nearest police station).   When cases are not prosecuted, the case ends there, with that fixed fee.   On average it is circa £170.  That is all the firm receives for the totality of the work they put in.  For every police station lawyer working today, there will be numerous cases every week that are resolved by way of an ‘out of Court disposal’ such as a caution, or are dropped altogether.  Preventing charge in an appropriate way is an extremely positive result for the client and something that I took great delight in achieving.

Year on year, the number of arrests has dropped.  You will see this spun in the news as “crime falling”.  Be assured that crime is certainly not falling.  The number of individual criminal acts is not accurately reflected by the way those acts are recorded.  Custody stations across the country have seen greater than 30% reductions in footfall following a concerted effort by forces to achieve fixed targets.  The knock-on effect of this alone has been devastating for Solicitors and Barristers alike.

On top of that, a sizeable chunk of cases end at the police station.  Each case that resolves without charge culminates after its own hefty workload.  Children falsely accused of serious offences, removed from school, where Solicitors have intervened with the investigation on numerous occasions.  Countless vulnerable adults arrested for offences never capable of being made out on the available evidence, necessitating solicitors to attend the police station on multiple occasions, and who call their solicitors no less than thirty times over the months their cases go on.  Lengthy letters to custody sergeants and inspectors protesting length of bail and onerous bail conditions, threatening more formal legal action if they are not amended or relaxed.

Some of those files will comprise detailed reviews of statute and Court of Appeal or Supreme Court cases, lengthy letters to senior officers raising complaints, representations on points of law, or letters to other Solicitors requesting assistance in ancillary legal challenges.  Others will contain identity procedure attendance notes, multiple pages of written disclosure, defence witness statements and documents provided by the client to assist in preparing their defence.  They will include correspondence from employers, divorce paperwork and screenshots or emails from former partners, all of which need to be considered in detail so that the client can be advised whether or not the contents needed to be disclosed to the police in order to bring about a faster resolution to the investigation.

How much are Solicitors paid for all of this work?

Having worked for or on behalf of many differently sized firms with legal aid contracts, I can confidently say that all clients are defended robustly with a view to fending off a potential prosecution.  Every file attracts that paltry £170 I referred to above.  That £170* covers at best two hours of work, three letters and four or five phone calls.  It is the norm however for it to become a huge financial hole, representing a considerable overall loss in terms of spent fee earner’s working hours, calls and correspondence.

It bears repeating.  Every police station attendance is now considered a ‘loss leader’.  It is hoped  that remuneration may  occur in the future, either the client will be charged or if the best possible result happens and charge is avoided, one hopes, a word of mouth recommendation through excellent client care will materialise.

How can criminal defence solicitors survive in these circumstances?

The only way that firms or criminal departments have stayed solvent without taking on privately paid work is due to larger Crown Court litigator fees.  Each case that results in charge attracts funding under a representation order payable on a fixed fee basis, and when those cases are larger and more complex, (such as cases with lots of defendants at the Crown Court) that fixed fee rises.  When there is a huge amount of evidence for lawyers to read (more than 10,000 pages) the fee rises significantly.  That does not mean that those cases are ‘well paid’.  Let us not become distracted by the fallacy that any publicly funded criminal work is properly remunerated.  It is not an argument that is worth repeating here.  Larger litigator fee cases come closer to properly remunerating those who conduct them, than the smaller cases do, while remaining in stark and depressing contrast to remuneration available in any other area of law involving the same volume of work.

Those large cases are rare.  They come around infrequently and when they do arrive, Crown Court Judges have become accustomed to splitting large groups of defendants into smaller cases and putting pressure on defendants to plead guilty early, before evidence is served, with promises of sentence discounts. That cutting, pressure and re-organising reduces the financial value of the cases significantly.

The government is now proposing to reduce the amount of money it is willing to pay Solicitors and Barristers for those higher page count, more complicated cases.  No proper justification has been offered for doing this.  Lawyers still need to read every page of evidence in every case.  Failing to do so is negligent.  Relying on automatic computer processes to read evidence ignores the fact that documents are frequently hand-written and scanned, and omits the chance for human error in typing the evidence prior to service.  I say it again, failing to read every page is negligent.

The losses sustained by Solicitors at the police station and in the Magistrates’ Courts, and by Barristers  who fall into a loss by properly preparing poorly paid Crown Court cases are not properly balanced by the larger cases.  All cases should be remunerated fairly.  However, those larger cases go a way towards keeping firms and Barristers afloat financially.  The criminal justice system has already been slashed to the bone.  Police station fees have been reduced.  Magistrates’ Court fees have been cut.  Crown Court fees have been lowered.  Less people are being arrested.  All this after no rise in almost two decades, despite vastly increased living and business costs.  So many individual cases are routinely being driven into losses that criminal lawyers’ (particularly at the more junior end) are now very poorly remunerated.

Trainee Solicitors in crime can expect to earn between minimum wage and £18,000 a year.  When they qualify they can expect little over £24,000 nationwide.  Solicitors with up to seven years post qualification experience can expect to earn up to £32,000 a year, and all this comes bearing huge student debt and bank loans to fund their qualifications.  Paralegals are routinely paid between £13,000 and £20,000.  Even the most passionate believers in justice are deterred.

Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future.  It is our children and the most vulnerable people in our communities who will suffer.  With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely.

As a law abiding tax payer you might think legal aid is an unnecessary expenditure, you never know when you might need it. No one plans to be falsely accused of a crime – just as no one plans to be a victim.

*Save for those that attract the “escape fee”.  Escape fees require many hours of attendance at the police station by the Solicitor in interview and equate to circa 4 x the standard fee.  These are rare, occurring only in complex and serious indictable only offences and almost always result in a positive charging decision. (I think it requires more than twelve hours and remember that you still aren’t remunerated for every hour you spend there).

You can (and should) follow CrimeGirl on Twitter at @CrimeGirl. 

The “Rape Shield” Bill is well-intentioned, meaningless and dangerous

Like the tide or the relentless ignorance of Iain Duncan Smith, the rhythm of certain recurring natural phenomena offers a comfort of certainty in an otherwise torrid and unpredictable world. One such inevitability was the reignition of the “Ched Evans row“, as media fiat demands it be termed. After several heady weeks in which almost all concerned abandoned calm and reason to soak in a pool of righteous, misinformed anger over cross examination of complainants on their sexual history and the meaning of the Court of Appeal ruling in Evans, there was a period after we all got out and dried off when tempers cooled and a serendipitous peace descended.

Ched Evans was a star player at Sheffield United.

It could never last. It was never intended to. That much was known when the government announced a review into the operation of section 41 of YJCEA – the legal provision setting out the limited circumstances in which evidence may be adduced or questions may be asked relating to previous sexual behaviour of a complainant in a sex case. We do not yet have the review, but yesterday nevertheless brought a pre-emptive legislative response, in the form of a Private Members’ Bill introduced by Plaid Cymru MP Liz Saville-Roberts.

The Bill, dubbed as a “Rape Shield”, has gathered attention since the weekend, as Ms Saville-Roberts trailed it across various media platforms. Explaining her premise, Ms Saville-Roberts wrote in The Times yesterday:

“So what’s the problem? It seems that rather than being invoked occasionally as originally intended section 41 is being over-ridden in courts to the degree that its effectiveness as a rape shield is weakening. This was thrown into sharp definition by the Ched Evans retrial. What was previously presumed to be a legal resort for extraordinary circumstances was presented as a successful defence strategy across the popular press and social media, which begs the question: from now on will every man charged with rape seize on this case as a get-out-of-jail-free card, and instruct his lawyers accordingly?”

Counting slowly to ten and fighting the urge to scream “THE ONLY PEOPLE PRESENTING THE CHED EVANS RULING “AS A SUCCESSFUL DEFENCE STRATEGY ACROSS THE POPULAR PRESS AND SOCIAL MEDIA” AND SUGGESTING THAT DEFENDANTS WILL UNIVERSALLY ADOPT IT AS A FORM OF PRECEDENT WERE NOT DEFENDANTS OR DEFENCE LAWYERS BUT YOU, THE HYSTERICAL MOB RESISTANT TO THE STRONG LEGAL CONSENSUS THAT EVANS SET NO MEANINGFUL PRECEDENT”, I shall accept, for the sake of argument, the premise that section 41 is being too loosely interpreted by Crown Courts, and that judges are permitting lines of questioning that they shouldn’t. I will respectfully observe that Ms Saville-Roberts’ reliance upon an anecdotal “dossier of victims’ harrowing experiences” collected by charity Voice4Victims, as evidence for her proposition that section 41 is insufficiently restrictive, is a little unscientific – a complainant, who is not legally trained, was not present during the judge’s ruling on the section 41 application and has a personal stake in the case, is not best placed to impartially assess the objective lawfulness, relevance or propriety of the questions on sexual history – but let’s not refight old battles about what precedent Evans sets or whether section 41 is or is not being correctly applied. Let’s assume that Ms Saville-Roberts is right, and consider the Bill presented yesterday.

As a Private Members’ Bill at a first reading, we must allow for this being very much a first draft. But even so, it is of a standard, it has to be said, which my pupil supervisor would have merrily set alight with his cigarette lighter had I presented it to him as an example of my drafting. The first clause of the Sexual Offences (Amendment) Bill deals with the proposed “Rape Shield”, and reads as follows:

1. Restriction on evidence or questions about complainant’s sexual history

(NONE)In section 41 of the Youth Justice and Criminal Evidence Act 1999 after
subsection (1) there shall be inserted the following subsection―

(2) A Court in making a determination in respect of subsection (1) may
require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings nor should such matters be admissible as evidence
if the purpose is to undermine the credibility of the complainant unless
it would be manifestly unjust to treat them as inadmissible.”

That’s quite a mouthful. Let’s break it down. Subsection (1) of section 41 YJCEA 1999, as a brief reminder, provides the general rule that:

(1)If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a)no evidence may be adduced, and

(b)no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. 

The remainder of section 41 sets out the limited exceptions under which leave may be granted, namely the circumstances set out in subsections (3) and (5).

So the new subsection (2) presumably seeks to add a further compulsory qualification to the general circumstances in which the judge can give leave under (1). I say presumably, because it is in fact entirely unclear what the subsection is supposed to achieve. Having read it repeatedly, the only way to begin to analyse its intended effect is to look at it line by line. In so doing,  I shall refer to the proposed new subsection (2) as subsection (1A) (as it ought properly be), to avoid confusion with the existing subsection (2).

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve…”

Right from the off, we see that this isn’t a mandatory restriction at all. It simply affords the judge a discretion as to whether to apply the qualifications that follow. Which, if your complaint is that judges are presently not exercising their discretion in this area correctly, appears an odd solution.

As to exactly what type of questions the judge may prohibit, we’ll turn to the substance momentarily, but it assists to skip to the end to get an overview of the purpose. Doing so gives us:

(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve [various matters] if the purpose is to undermine the credibility of the complainant.”

This gets to the nub of the (entirely proper) objection that Ms Saville-Roberts has to evidence of sexual behaviour being used to discredit complainants, this being one of the “twin myths” – (i) “promiscuous” women are less likely of belief, and (ii) are more likely to have consented to sexual intercourse – that section 41 was designed to combat. Firstly, given that this Bill is presented as the panacea to the “Ched Evans problem”, it bears constant repetition that the reason for the admission of the sexual history evidence in Evans had nothing whatsoever to do with attacking the complainant’s credibility. Secondly, the authors seem unaware that section 41 already has that exact prohibition in place:

(4)For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

Which rather makes (1A) otiose.

But what are the restrictions that the judge may apply? Well, s/he:

may require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings”

This is so broad as to defy definition. It covers quite literally “any matter appertaining to behaviour” – not just sexual behaviour. Quite what is meant by  “sexual history with any unrelated third parties” remains to be seen, no definition being offered, and a literal reading suggesting that evidence of incest would be admissible. The last line really tops it off – regardless of the nature of the complainant’s alleged behaviour either before or subsequent to the current proceedings – reading as an attempt to ban any question in any context. The incoherence is staggering.

Then we reach the final qualification:

“unless it would be manifestly unjust to treat [those matters] as inadmissible.”

The discretionary nature of this provision renders an “unless” clause utterly pointless, but in any event, it again adds nothing. Because there is already built into the existing subsection (2) of s.41, a requirement that leave should not be given under section 41 unless the court is satisfied “that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.” Much as the Court of Appeal enjoys a spot of sophistry, identifying a meaningful distinction between a decision that is “manifestly unjust” and one that merely “renders unsafe” the verdict would be a head-scratcher even for them.

The only conclusion one can draw, for this to have any meaning, is that the word “may” is an error, and that the author intended this provision as an imperative. In which case what you get is a mandatory restriction on asking the complainant any question on any aspect of behaviour – including lies, evasiveness or inconsistency – which may be designed to undermine their credibility. Faced with a false allegation, you would be prevented from challenging the credibility of your accuser in any way.

Put simply, the drafting of this Bill shows that no understanding of the law, or the principles behind section 41, has been attempted by its creators. It is knee-jerk to the point of hyperextension. Other comments by Ms Saville-Roberts, in which she mangles the reasoning of the Evans ruling, and even goes as far to suggest that section 41 as presently drafted is intended to exclude evidence of a complainant’s mental health, suggest that she, like many before her, has not taken the time to properly study the basics of her subject before rushing to legislate.

And I go into this tortuous detail because it exposes a deeper ignorance of our basic principles of justice, as demonstrated even more starkly in the next clause of the Bill, which seeks to impose a general ban on the police and CPS telling a defendant the name of their accuser, or other witnesses, in cases involving sex or violence, without the leave of a Crown Court judge (a proposal demolished by Nick Diable here). This is not a considered rebalancing of a finely-tuned and delicate ecosystem – it is an aggressive demolition of our common basic rights in the name of Doing Something to correct a problem which the architects don’t even understand.

I have no doubt that Ms Saville-Roberts and her sponsors are motivated by a genuine and noble desire to correct what they perceive to be cruel humiliation visited upon vulnerable complainants. But in so acting, they subscribe to a philosophy in which the court process is reimagined as a way of simply navigating our way smoothly to a conviction, safe in the certainty that if the defendant stands accused, it follows that he is guilty. In this model, it is of course rational that the minimisation of the complainant’s distress is the guiding principle, with the presumed guilty defendant’s interests an afterthought; worse, an inconvenience. A precondition of any reform of section 41 is sober analysis of the competing interests – defendant, complainant and state – and root principles of justice, before so much as a word of a new Bill is committed to paper. Otherwise we end up with Bills like this – well-intentioned, meaningless and potentially very dangerous indeed.

Do we really need a law telling people not to assault NHS staff?

Today’s PMQs offered a public airing to a campaign which struck a chord with me, but which may have been overlooked by others amidst the farce of Jeremy Corbyn mistakenly offering “condolences” to the family of a dead police officer who was in fact very much alive and trying to excruciatingly lie his way out of his error. The campaign in question was mentioned by Oliver Dowden MP, and seeks to offer protection to NHS workers at risk of violence from patients.

 

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Although not explicitly stated, it appears that Mr Dowden is linking arms with a petition, currently running at over 110,000 signatures, which calls for Parliament to create a specific criminal offence of assaulting any member of NHS medical staff. The creator of the petition is Nick Ferrari, the LBC radio host, who demonstrated his grasp of sensitive and complex legal matters when he last month waded straight into the brouhaha over Marine A being refused bail without bothering to acquaint himself with the basics, echoing the lament of the ignorant – “Our courts grant bail to paedos but not to war heroes” – over his airwaves. [For an explainer of this affair, see here.] But the petition still deserves a fair hearing, as indeed it will get in Parliament now that it has hit the 100,000 mark. Its premise and purpose are to the point:

“There are 193 attacks on NHS staff a day in England. LBC’s Nick Ferrari thinks this is unacceptable. Support his ‘Guard Our Emergency Medical Services’ campaign to better protect our doctors and nurses by making it a specific legal offence to attack them.

Figures show that attacks on NHS staff are rising. With stretched resources, higher demand and rising waiting times the NHS can ill afford this violence.

For twenty years it has been a specific offence to attack a Police officer conducting their duties. (Section 89(1) of the Police Act 1996).

We the undersigned believe it is time to extend this higher legal provision and protection to NHS medical staff and make it a specific offence to assault them.”

 

 

 

The methodology behind his numbers is not clear, but if we accept for now the premise that attacks on NHS workers are rising, is a new law criminalising this particularly despicable type of violence – giving doctors and nurses the same protection that we offer to police officers – not a self-evidently good thing? Should the cries from the British Medical Association and Royal College of Nursing not be acted upon? Particularly when, as Mr Dowden pointed out to the House today, specific laws also exist to criminalise assaults on prison officers and immigration officers?

I’m afraid not.

For a start, extending section 89(1) of the Police Act 1996 as the petition demands (and as is achieved in the case of prison officers by s.8 of the Prison Act 1952), would have next to no practical effect. Because the offence of assaulting a police officer presently has next to no practical effect. The maximum sentence for assaulting a police constable under s.89 (or a prison or immigration officer) is six months’ imprisonment, which is the same maximum sentence that a court can impose for common assault or battery under s.39 Criminal Justice Act 1988, the Act under which less serious assaults against NHS workers – indeed, against anyone – are currently charged. More serious assaults causing injury, whomever they are against, will be charged as assault occasioning actual bodily harm or inflicting grievous bodily harm, which carry significantly higher maximum sentences.

Furthermore, under the Sentencing Guidelines which courts are required to follow, if an offence of assault was committed “against those working in the public sector or providing a service to the public”, the court must already treat that as an aggravating factor when arriving at the sentence.

It is difficult to see therefore how what the petition seeks would in any way offer the “higher legal protection” sought, assuming that by “higher legal protection” Ferrari means “tougher sentences”. It would create a new shiny offence with an exciting new name, that would tie up Parliamentary time and add yet further pages to our diarrhoeaic criminal law, but would not result in a jot of practical difference when it came to sentencing these crimes. Unless Ferrari envisages a higher maximum sentence for this new offence, in which case we can look forward to the immediate uproar from police officers wanting to know why someone punching them in the groin can only get 6 months while someone performing the same manoeuvre on a dentist can get up to a year.

Which leads us to the broader problem with laws of this type – What About Me? If NHS medical staff are to be regarded as comprising a vulnerable, public-facing group against whom an offence is ipso facto more serious, no doubt other interests would wish to be considered. Teachers, for instance. Or firefighters. MPs have a pretty good claim. The Armed Services have been pushing for such a law for some time. Bus drivers are common targets of unhinged violence. Court staff put themselves face-to-face with the very worst people in society on a daily basis. So in fact do we lawyers. And our staff. All of us are performing a public service. All of us deserve protection. Can we have a law named after us too?

The greatest objection though is that this approach just does not work. The petition plays to the legislator’s fallacy, beloved of those like Ferrari who think that the panacea to the social maladie du jour is just one law away. If we say X is an offence, and the punishment sounds tough enough, X will stop. Reality does not bear this out. The fact is that the people we see in court every day who roll into A&E smashed and abusive, spitting at nurses and headbutting doctors, are not going to be deterred by the knowledge that Ferrari’s Law means they might now be charged with Assaulting a NHS Worker instead of common assault. The problems isn’t that there’s not a law to prohibit what they’re doing. It’s that law alone is not enough. Simply adding further legislation to existing legislation in the hope that enough reams of the stuff will somehow resolve deeply embedded social, cultural and behavioural problems is the theory of the madhouse.

I appreciate from first hand experience that medical staff risk their personal safety daily in what are usually intolerable and at times highly dangerous conditions, and my scepticism for this initiative should not be read as a lack of sympathy. If there were a practical law that could achieve the desired result of fewer assaults on medical staff, I would mount my hobby horse and back it to the highlands. But this petition’s promise of “higher protection” bestowed by a special, targeted offence is a chimera. Well-intentioned, no doubt. But wrong.

If I were a shock jock riffing on an ill-thought out prescription for an immediately better society, I’d speculate that the solution lies somewhere between spending more money on staff, decreasing the time that these violent thugs can spend winding themselves up in the waiting area, spending more money on mental health services so that those offenders are properly diverted, and spending more money on security at hospitals. But I’ll settle for saying, more authoritatively, that whatever the answer may be, Ferrari’s Law isn’t it.

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Will Quince MP: An addendum

This serves as an addendum to the previous post, but I thought it was worthy of attention in its own right.

To those who missed it, a brief recap: Will Quince, MP for Colchester, publicised a letter he had sent to the Lord Chancellor, in which he expressed his view that a sentence passed in a local Crown Court on two burglars was unduly lenient, and invited the LC to agree. I took umbrage at the fact that this settled criticism had been formulated without knowledge of the full facts of the case, nor any acknowledgment of Sentencing Guidelines that judges are required to follow, and wrote a fairly impolite and intemperate rejoinder.

Mr Quince and I corresponded on Twitter, and having reflected I updated the post and apologised to Mr Quince for its original tone. Since that time, we have exchanged emails and discussed matters further. Mr Quince has then yesterday sent this letter to the Lord Chancellor, Attorney General and Bob Neill MP, Chair of the Justice Select Committee:

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The letter speaks for itself. And, if he will forgive me saying so, it also says much positive about Mr Quince.

Although (for the reasons expressed in the last post) it appears to me that the Sentencing Guidelines were properly applied in this case – and that a comment from the Lord Chancellor on a specific case is unlikely – I obviously cannot and do not take issue with him posing the question and seeking further information. It is similarly entirely proper for him to reflect the concerns of his constituents and to ask whether the Sentencing Guidelines, as presently drafted, command public support. He is not alone in his concern that Sentencing Guidelines sometimes betray inconsistencies and appear out of kilter with public expectations; many in the professions would agree. For completeness, I would add that the links to the public consultation exercise that informed the Burglary Guidelines can be found here (with an explanation of the role and functions of the Sentencing Council here).

It is rare for a public figure, when challenged or corrected on the way they have represented the law, to admit an error or a rush to judgment. It is even rarer for them to take steps to publicly adjust their position.

It is to Mr Quince’s enormous credit that he has done so with such speed and candour, not least given that I did not initially engage him in particularly cordial terms. For that, I again apologise. It is too easy to assume that all MPs who opine misleadingly on the law do so with the chronic, wilful ignorance and boastful obstinance of Philip Davies, rather than to countenance the possibility that this is a human being making a mistake in good faith. I am grateful to Mr Quince for, through his conduct over the last few days, reminding me of this.

A court soft on burglars, or an MP missing the facts?

It would be nice to usher in 2017 with an exciting fresh take on a vibrant, buzzing legal issue of the day. As it is, the first post of the New Year is to be spent – and I fear this will be a recurring theme – reminding an elected Member of Parliament how the law works. That this has to be done in any case is depressing enough, but today’s is particularly disquieting given that the MP in question, Will Quince (Con, Colchester), is a qualified solicitor.

His LinkedIn profile states that he spent just under two years post-qualification working  in the Business Services department of a firm of solicitors in Colchester before being elected to Parliament in May 2015. It is unclear whether he has ever practised in crime. Nevertheless, he has this weekend made it his business to write, on Parliamentary letterhead, to the Lord Chancellor Liz Truss about “far too lenient” sentences that were passed last week on two local burglars, inviting her to join him in his condemnation.

hamburglar

A burglar

Mr Quince was not actually at Ipswich Crown Court for the sentence of Raymond Tauchert (55) and Carlton Ho-Ten-Pow (36) following their guilty pleas to a single count of burglary. But he read a report in his local newspaper about how the two men broke the window of the Colchester branch of Ernest Jones jewellers with a hammer in the early hours of October 20th last year and grabbed £8,200 worth of jewels, and how a two-year suspended sentence was imposed in each defendant’s case, and he is jolly cross about it. And Mr Quince wants the Lord Chancellor, the press and his Facebook fans and Twitter followers (to whom he has retweeted the press coverage of his campaign) to know.

It is a shame, I would respectfully observe, that he didn’t acquaint himself with the facts before doing so.

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Because had he done so, he would have learned several things. Firstly, he would know that there is no such offence as “armed burglary”. Secondly, that there is in any event an important distinction between being armed for the purpose of threatening violence, and having a tool with you to break a window. Thirdly, and more pertinently, he would have been alerted to the existence of Sentencing Guidelines. These are the guidelines, produced by the Sentencing Council, which courts are legally required (section 125 of the Coroners and Justice Act 2009) to follow when passing sentence on a defendant. Specific guidelines exist for burglary. And at page 12 we see how a court is required to approach offences of non-dwelling burglary, step by step.

As the tenor of Mr Quince’s complaint – soft judges passing soft sentences – is a familiar refrain among politicians, it might assist to play through the sentencing exercise that courts are required, by legislation passed by those same politicians, to follow.

Step 1 is reproduced below. The court must first identify which category the burglary falls into, to arrive at a sentencing range. This is done by looking at a list of factors indicating “greater harm” and a separate list indicating “greater culpability”, and seeing which apply to the facts of the case.

burg1

Immediately, you may spot a problem – how do we know the exact facts of the case? Well, we don’t. We know about as much as Mr Quince. Which is what a journalist has chosen to selectively report from what the prosecuting and defending advocates have said over the course of a twenty to thirty minute hearing. We haven’t seen a transcript of the prosecution opening of facts, nor of the mitigation advanced, nor the judge’s sentencing remarks. We haven’t read the detailed Pre-Sentence Reports prepared by the Probation Service. And we haven’t seen the prosecution papers containing all the evidence. So we are going to have to follow Mr Quince’s lead in arriving at conclusions based on partially-glimpsed fragments of the full picture.

But let’s have a go.

Goods to a value in excess of £8,000 were stolen, and even to a large jewellery company, that would still amount to a “significant loss”, and for that reason this is a case of “greater harm”. None of the other factors indicating greater harm appear to be present. There was no suggestion that anyone was at work – this was after all the middle of the night – nor that there was any ransacking or vandalism beyond the damage caused to the window. Nor are there any factors indicating lower harm. Higher culpability is also present – this was a group (it is suggested that three men were involved, the third remaining at large) and they had a hammer to effect the break-in. So this is comfortably a Category 1 offence.

What does that mean? We turn the page:

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It means a starting point of 2 years’ imprisonment. With a range of 1 to 5 years’ custody. We then see a range of factors that increase and decrease seriousness, which the judge applies to move the sentence up and down that range. It’s worth interposing here the (perhaps rather obvious) point that each defendant is treated separately. You don’t, as Mr Quince’s letter seems to imply, add up the combined convictions of both defendants and punish each for the other’s previous misdeeds.

What we are told about Tauchert is:

  • He has 18 convictions for 52 offences;
  • He was on licence at the time of the burglary having been jailed for nine years in 2010 for conspiracy to supply class A drugs and handling stolen goods having been part of a gang raiding warehouses;
  • He was released in March 2013 and had not committed an offence in over three years;
  • His mother died in the summer from cancer and he returned to taking heroin. He took 100 morphine tablets and was committed to hospital.

His convictions are plainly an aggravating feature, as is the fact that he committed this offence while on licence. We also know the offence was committed at night, although not, it seems, when anyone was likely to be present at the store. In his favour, a 3-year period of non-offending is notable for someone of his criminal history, and he appears to have taken steps to address a longstanding addiction. Importantly, there was, the court appeared to accept, a genuine trigger for his recent tumble back into old ways. It does not excuse his criminality, but it mitigates it. And will give a court cause to pause to consider whether a return to prison is likely to do more harm than good to his long-term rehabilitation.

Of Ho-Ten-Pow, we know only that:

  • He has six convictions for 22 offences, including an offence for drug trafficking;
  • He was the subject of a community order at the time of the burglary;
  • He has expressed remorse;
  • He was in a bad relationship, had lost 4 1/2 stone and had fallen back into drug use.

Similar considerations apply, albeit his sob story may not pack the same punch. It’s worth noting that we know nothing about his existing community order. The court will have had all that information as its fingertips. The Probation Service will have reported on his progress on this order and whether, in its professional view, this is a defendant worth persevering with.

We also know that both defendants pleaded guilty and were entitled to one third credit for an early guilty plea. This is standard across all courts. Guilty pleas save everyone – court and witnesses – time, expense and worry, and so defendants are given a discount on their sentence if they admit their guilt early on.

Additionally, and importantly, both defendants had been remanded in custody since their arrests in October. So they had already served around 3 months in prison (the equivalent of a 6 month sentence), which would by law count towards any sentence of imprisonment.

Putting that all together, the Gazette reports that the judge adjusted the sentence up from 2 years to 3 1/2 years to reflect the aggravating features. Given what we know, this appears entirely sound. This is not the most serious Category 1 offence – as far as “diamond heists” go, this was hardly Hatton Garden territory, and, crucially, there was no confrontation with any individual, which is the usual trigger for a sharp tilt towards the top of the range. 3 1/2 years is around what I would advise a client to expect after a trial for this offence.

There then appears to have been a downward adjustment to 3 years – perhaps for the personal mitigation – before the judge (or Recorder, as he was) applied the one third credit to arrive at 2 years’ imprisonment.

Any sentence of 2 years or under can be suspended. We do not know for sure why the judge suspended it in this case, but the history of drug use, rehabilitation and relapse may well have led the judge to conclude that it was worth taking a chance on these defendants and giving them a suspended sentence with drug treatment and rehabilitation requirements. If they foul up, they’ll go straight to prison. If not – if they get clean and stop committing crimes – everybody, in particular the good and law abiding folk of Colchester, wins. Pre-Sentence Reports are often persuasive in these cases.

So considering what little we know about the offences, there does not, to my professional eye, appear to be anything outrageous about these sentences. The men were fortunate, perhaps. Some judges may not have taken the chance, and may have sent them straight down for two years. Possibly a little more. But nothing about this case suggests that the judge has done anything that he was not fully entitled to do on the guidelines.

And this would have all been plain to Mr Quince had he taken the time to to research the law and the facts, or to ask a criminal lawyer for help, or to seek a source of information beyond a 640-word news article, before firing off his letter to Liz Truss.

Most disappointingly of all, the letter is entirely misdirected. The Lord Chancellor is not in the business of joining excitable MPs in breaching the separation of powers and criticising judges for “soft sentencing” on the basis of inchoate media reports. The Lord Chancellor’s statutory duty is to uphold the independence of the judiciary. Liz Truss does not do this very well, but even she in her resplendent incompetence is not going to endorse Mr Quince tutting how “gobsmacked” he is at the judge’s conduct, nor whatever point this sentence is supposed to express:

“It flies in the face of members of the public who went to collect evidence, to the police officers who investigated and who made the arrests and to costs of the court.”

A more appropriate addressee for Mr Quince’s letter would have been the Attorney General, who superintends the Crown Prosecution Service and has the power to refer unduly lenient sentences to the Court of Appeal; but even then, it would have been to nil effect, burglary not being one of the offences that can be referred. If, having soberly reflected, Mr Quince genuinely believed that there had been a serious judicial error requiring disciplinary intervention, his recourse would lie with the Judicial Conduct and Investigations Office, assuming they stopped laughing long enough to formally process and reject his complaint.

The conclusion that one is regrettably driven to is that Mr Quince does not really know what he is saying or what he is doing. Which is a pity, because as a Parliamentarian and a lawyer, he is one of the people his constituents might reasonably expect to accurately and sensibly guide them on this type of issue, rather than firing up the torches and leading the villagers blindly towards the courthouse. When Liz Truss responds to Mr Quince, I hope that she reminds him of this in terms. And that he publicly circulates her reply with the same vigour as he has his original letter.


UPDATE: The advantage of blogging is that if, upon reflection, you realise that an argument you had made, or the way in which you have expressed a point, is wrong, you have the power to correct it. In the original text of this post, I think that I made such a mistake. Mr Quince politely responded on Twitter and engaged in a very civil exchange in which he indicated that, in light of the observations I had made, he would send a follow up letter to the Lord Chancellor. He also opined that he found my blogpost to be “unnecessarily rude”, referring in particular to the original title of the blog, in which I (rather weakly, in search of a rhetorical device) suggested he was “soft in the head”. Regular readers will know that deference to public figures who deliberately or recklessly mislead the public on the law is not the style of this blog. And certain people (I think in particular of Philip Davies MP, Katie Hopkins and other repeat offenders), who have been given countless opportunities to reform their ways and plough on in their pig-headed ignorance, deserve a dose of unapologetic and colourful impoliteness. I make no apology to them and their kind. But with Mr Quince I think I may have prematurely, and unfairly, crossed the faint line between stridency and rudeness in the way I sought to make my point. A number of people whom I respect took issue with the tone and style, which distracted from the thrust of what I maintain is a solid argument. And that  – having a good point lost because of the manner of its expression – is bad advocacy. As well as poor form in general.

With that in mind, I have moderated the text of the original post, I hope to no less effect, and possibly to greater. There is a balance to be struck between being punchy and strident, and being snarky and rude. I certainly did not intend the latter over the former, but if that was the effect of my words and style, I apologise to Mr Quince. For his part, I still urge him to consider the broader danger posed by MPs attacking court decisions without knowing the law. He may well, as a representative of the people, have strong views of his own and of his constituents concerning matters of local criminal justice. And it is of course proper for him to address such concerns through the appropriate channels. But in doing so, little is achieved (and much damage is done) if careful and sober reflection give way to knee-jerk reaction and a clamour to politically capitalise in the media without learning the full facts. Mr Quince has indicated that, notwithstanding the analysis above (which he accepts), he still considers the sentences to be unduly lenient, and I have offered him a right of reply on this blog for him to set out his position. I shall post any response below.

Were the judges “incompetent f****-ups” to refuse Marine A bail?

There is a risk, I am acutely aware, of this blog appearing to transmogrify into The Secret Judicial Cheerleader. Which it is not. By way of pre-emptive self-defence, I should point out that much of my professional life is spent politely pointing out to judges why, in my respectful submission, the course they are thinking of taking, which just happens to be adverse to my client, is wrong.

And sometimes, I dare say I’m even right about that. Because judges are fallible. From magistrates – especially magistrates – through to Supreme Court Justices, errors in reasoning and application of the law occur. And people far brighter than me forge glittering careers appearing in the higher courts, and publishing brain-stretchingly clever academic criticism, telling judges just how wrong their brethren – or they – are.

But what those types of argument have in common is that those making the case against judicial decisions do so in full possession of the relevant facts and law. Which is a precursor, you might think, to entering any debate, whether in court, print media or online. Know what you’re talking about. If you’re not sure why something happened, pause and find out, before leaping to the settled conclusion that, because that something instinctively offends you, it must be wrong. Or unjustifiable. Or evidence of systemic corruption. Or proof of some other cosy conspiracy theory.

It’s rather sad that I feel I have to open with such obvious points, but increasingly it becomes clear that they escape many who wish to inflict their opinions on their large, and often inexplicable, followings.

And so to Marine A, or Sgt Alexander Blackman. I touched on his case a few days ago, when his application for bail pending his appeal against his conviction for murder was adjourned. Yesterday the Court Martial Appeal Court (CMAC) heard the bail application, and refused it. The appeal will be expedited and listed as soon as possible next year, but the appellant will not be coming home for Christmas.

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On cue, a band of merry speaking heads sprang up, Whack-A-Mole style, to denounce this decision. That so many did without being in court and before the Court published its judgment perhaps tells you something about the factual soundness of their premise. A choice few include:

So what happened? As a brief recap of the case, Sgt Blackman was convicted of murder in 2013 by a Court Martial, having shot an Afghan detainee at point blank range in 2011 while on tour in Afghanistan.  The case pricked emotions all round. For many, this was an act of cold-blooded murder which degrades the reputation of our military and endangers fellow servicemen, and Blackman was rightly prosecuted and convicted. For others, this was a mistake by a respected hero risking his life for our safety, and the morality and legality of such things done in the fog of war cannot be second-guessed by civilian commentators or media.

The details of the appeal are subject to reporting restrictions, but what we know is that the Criminal Cases Review Commisison has presented fresh psychiatric evidence which it is said relates to the appellant’s state of mind at the time of the shooting, and which renders the conviction for murder unsafe. It will be submitted that the correct verdict should have been manslaughter, on the grounds of diminished responsibility. There are also further grounds relating to, amongst others, alleged incompetence of the trial representatives. (The full issues for appeal, some referred by the CCRC, some raised for the first time by the appellant, are listed at para 9 of the judgment.)

Yesterday was the first effective hearing at the CMAC. Bail was sought and refused. Why? Was it, as Bannatyne says, because judges are incompetent? Was it because they are, in the poetic words of Jon Gaunt, “fucked up”? (A side note on Mr Gaunt – he is the radio presenter who, after being sacked by Talksport for calling a guest a “Nazi”, took his case against Ofcom as far as the High Court, where it was held that “the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification”. Which will no doubt be his epitaph.) Was Blackman failed by judges maliciously applying lesser standards to a war hero than they would a migrant rapist, out of loathing for their country?

Actually, the reasons are set out in the judgment, which, if one takes the time to read it, makes for a far less scandalous tale. As para 18 patiently explains, bail pending appeal is rarely granted. This accords with most practitioners’ experience of appellate proceedings. Bail will only be granted in “exceptional” circumstances. Before conviction, there is in most cases a presumption in favour of bail, and the court will need to be satisfied that there are substantial grounds for withholding bail (e.g. the defendant is a flight risk, or there is a risk of further offending). But where someone is convicted and is seeking to appeal, entirely different considerations apply. Exceptional circumstances must be made out in order for bail to be granted. What amounts to “exceptional”? The test is set out in case law. Normally, “exceptional” requires that the merits of the appeal are overwhelming, or that the appellant will have served his sentence by the time of the appeal, rendering it practically nugatory.

Here, neither of those was satisfied. The Crown, although neutral on the issue of bail, do not accept the premise of the appeal. They do not agree that the new psychiatric evidence establishes a potential defence of diminished responsibility, and will argue that the conviction for murder is safe (para 13). With this in mind, and the Court having seen the fresh evidence, it considered that the case cannot be seen as “overwhelming”. (And anyone who feels able to positively  disagree with this assessment without seeing the evidence is frankly beyond reason.)

Turning to the second limb, even if a conviction for manslaughter were successfully substituted for murder, it does not follow that by the time of the appeal, he will have served all of his sentence. Exceptional circumstances, the Court held, are not made out on the test that the Court has to apply. The test is not, as some would wish, whether one has sympathy with Sgt Blackman, or whether the judges know the true meaning of Christmas. It’s the same test that is applied to all murder convicts. Reaching for the trite point, if you were the family of the deceased, you would want the Court to follow the law when entertaining a bail application from your beloved’s killer, rather than to base their decision on the whims of the public mood. This is the rule of law, folks. It’s there to protect us all.

The timing of the appeal is also important. In recognition of the urgency of the appeal, the Court has agreed to sever the various issues raised in the grounds of appeal and to expedite the seemingly most pressing – that of the psychiatric evidence. The appeal on this ground is likely to be heard at the end of January 2017 or start of February. To those abusing the judges for their lack of compassion, for the Court of Appeal to list a substantive murder appeal hearing involving fresh psychiatric evidence within a month of the CCRC reference being received, is rare. This case, whether rightly or wrongly, is getting afforded attention and speed of treatment that many equally, if not more, meritorious appellants can only dream of.

Again, I’ll close with repetition: this is not, as some like to suggest, blanket support of the decisions that judges take. It’s not even saying that this particular decision is unimpeachable. It’s certainly not saying that people shouldn’t feel strongly about cases like this. But there’s a difference between criticism factually-grounded and forcefully expressed, and ignorant, gratuitous abuse such as that spat out by Bannatyne and his ilk.

The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:

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Which perhaps, at this stage, is all that properly can be said.

Katie Hopkins and the judiciary: another pointless lie

On the day that Katie Hopkins’ wilful disregard for the truth landed her, and the Daily Mail, in £150,000 worth of piping hot water, it is reassuring to see that she has not been deterred from jumping straight back on her unicorn.

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After Hopkins viciously libelled a family of Muslims as Al-Qaeda supporters in her MailOnline column, a grovelling apology was pushed out on her behalf by the Mail, and was meekly (and, we can safely assume, by obligation of the terms of the settlement) tweeted by Hopkins herself at 2am this morning, in the following sincere terms:

 Happily, for anyone who might have missed this display of fulsome contrition, Twitter was on hand to ensure that it reaches an audience commensurate with that which consumed the false story in the first place. Hopkins though has moved on to bigger and better things, including retweeting her latest column. Which is on the law.

And so, with a heavy sigh, I rise to make the following brief observations, accuracy being I am sure uppermost in Hopkins’ mind at the present time.

Hopkins is exercised about the case of Sgt Alexander Blackman, whom you may otherwise know as “Marine A”. Sgt Blackman was convicted in November 2013 by a Court Martial of the murder of an injured Afghan prisoner after shooting him at point blank range, while on tour in Afghanistan in 2011. He was sentenced to life imprisonment with a minimum term of 10 years, reduced to 8 years on appeal. His original appeal against conviction was dismissed, but he now has a further bite of the cherry after the Criminal Cases Review Commission considered that further information relating to Blackman’s mental state at the time of shooting gives rise to new grounds of appeal.

Which is where Hopkins enters. Because her latest column sees her accompany the supporters of Sgt Blackman to the Royal Courts of Justice last Friday, 16 December 2016, where the case was listed before the Court Martial Appeal Court for an application for bail pending the full appeal hearing. And from her vantage point she is able to offer some brief, sage observations on the criminal justice system.

She begins with the following opener:

“Big Al is not even here. He’s keeping clear of the courts in case he jinxes the outcome, preferring to stay and wait quietly, hoping, holding his breath.”

I don’t pretend to be intimately acquainted with the case, but I would observe that section 27 of the Court-Martial (Appeals) Act 1968 provides that an appellant has no right to be present at any proceedings preliminary to an appeal (unless the Court grants him leave), so it’s a curious narrative spin. But who knows – maybe he did apply for leave to be present, have it granted and then turn it down out of superstition. Maybe Hopkins knows something I don’t.

But where I take stronger issue is with the concluding paragraphs, as Hopkins describes how the proceedings are adjourned:

“Then bad news came. This will not be sorted yet. An adjournment. Another week of waiting whilst the prosecution make more submissions.

This wasn’t how I imagined it to be. This was not the happy Christmas the street lights were promising. This was not what we came for. This was awful.

‘The judge is a wanker’ shouted an angry man in the crowd, cross, disappointed.

I am not certain this is true.

But I am sure the law is an ass. A law which goes after our own soldiers, when migrant rapists have human rights to a family life here. A law which tells our Chelsea pensioners they are being investigated for their efforts in Northern Ireland forty years ago when ex IRA sympathisers, Gerry Adams and Martin McGuinness can assume power, blame free.

I walk away despondent. And wonder, if those judges had to spend another seven days behind bars at Christmas, or their wives endure more time horribly alone, whether they would adjourn a hearing quite so casually ever again.”

The penultimate paragraph is a Hopkins special – a proper old-fashioned brew of non-sequitur and urban legend – but it’s the final line that needs challenge, seeing as this is the dum-dum-dum Eastenders dramatic finish, the rhetorical swirl of her sign-off.

Judge-bashing is of course terribly modish, but in between the schoolgirl giggles at “wanker” judges and condemnation of their “casually” adjourning the hearing, there is space for some cold, hard fact. Fact which Hopkins could have easily discerned by listening to what the Court in fact said. And by reading what it published when explaining why the hearing had been adjourned. Which was as follows:

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So, as we can all see, this wasn’t the Court lazily knocking off for an early Friday finish. Or casually adjourning the case for a week because it doesn’t care about the liberty of the subject. But because the CCRC had not served its full reference – the document setting out the details of its investigation and the evidence behind its conclusions – on the prosecution. And the prosecution was therefore unable to indicate its stance on the appeal, or the issue of bail.

I go to these lengths to pick up on these tiny points, because each time an idiot with an audience or their paymasters tell 2 million people that our judges are corrupt, or are wankers, or don’t care about decent normal folk, or are enemies of the people, this all bit by bit chips away at public faith in the rule of law. There is a lot to get upset about when it comes to the administration of law in this country. And often much to legitimately criticise in various judicial decisions. But when sensible, level criticism gives way to name-calling and baseless accusations of bias or negligence, it cheapens debate and demeans public life.

If we had a functioning Lord Chancellor, she might say something like that to warn off the Hopkins of this world. As we don’t, I shall have to rely on a complaint to IPSO. Unless of course, Hopkins wishes, in the spirit of her recent discovery of penitence, to withdraw her unpleasant and untrue attack on the judges and publish a full apology and clarification.

She might even consider tweeting it during working hours.