Wednesday, December 23, 2009

Asylum seekers

I appreciate this is running up the Daily Mail Comment Attractor, but there we have it. The simple truth; we struggle to deport those who are here illegally.

“Last year we removed a record 5,400 foreign nationals, including over 50 killers and attempted killers, over 200 sex offenders and more than 1,500 drug offenders. In total more than 66,000 people were removed or returned home voluntarily.”

But the man in the article above was waiting for his turn. Asylum seekers, by their very nature, often live entirely outside society -- no licence, no legal job, no bus pass, no fixed address, no mobile phone contract.

Mr Ibrahim, who has never held a valid driving licence, had been banned for nine months for driving while disqualified, without insurance or a licence, and was on bail at the time of the collision.

Now that's taking the piss. He's just been convicted of more driving offences too.

Actually, this isn't about asylum seekers, but the sentences for causing death by dangerous driving, driving whilst disqualified and suchlike. The short version: they should be stiffer.

Wow, maybe this is the Daily Mail.

Monday, December 21, 2009

Where to begin?

What a few days! Firstly, the so-called "best-value tendering" was abandoned. This process of a reverse auction for the provision of legal aid services would have been disastrous for those in crime, both in the sense of practising it and committing it. People would receive less attention from their legal aid lawyer, who would be desperately trying to make a decent living by churning cases. Even if you know nothing about the law and how it functions, this decision was a major victory for people's rights.

Then, the Law Society, perhaps emboldened by this success, has started an action against the government in respect of means testing in the Crown Court.

"What's means testing?", I hear you cry. Those who can afford to pay for their defence, will have to do so. The acquitted will be 'refunded'. The reality is that people with a half-decent wage (£20k ish) will probably be above the line, and will be hammered with big bills. The pressure is obvious -- cough up the wedge, or just plead guilty and save yourself some money. Even if you're acquitted, you won't get it all back.

Then, reality hit. People are still having their reputations ruined, and our libel laws are still stifling medical debate.

Ho hum.

Tuesday, December 15, 2009

An Englishman's home is his castle

In the case of Tony Martin, it meant shooting an escaping burglar in the back.

Munir Hussain, a father of three, returned from the mosque he attends with his family, and he, his wife, and his three children were tied up by the three masked intruders in his house.

He was told he was to be killed. He threw a coffee table, and made good his escape. He found his brother, and chased the intruders down the road. The one they caught was beaten with a cricket bat. The bat split into three, an indication of the force used. He has a permanent brain injury, and was not fit to plead. He is effectively in a secure mental hospital for life.

He was jailed. The Times Online link has comments at the foot of the page. If you look to see the "Most Recommended" (sic), one of the top two comments is as follows:


The judge, of course, made remarks, which received precious little attention. His comments deserve repeating, albeit as reported by the press, and not from a transcript:

"If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice take its course, then the rule of law and our system of criminal justice, which are the hallmarks of a civilised society, would collapse."

Quite right, too, however tempting it may be to grab that bat or 12-gauge.

Wednesday, December 9, 2009

Presumption of innocence

If your partner phones the police after an argument, a record is made on the police computer for such matters (known as a CRIS report). "Domestic", so the boys in blue have to turn up and talk to people. Some forces run a "zero-tolerance" policy, which means that someone HAS to be removed from the property there and then (usually the person complained about, usually arrested).

Let's say this happens more than once. Totally unnecessary calls, on every occasion.

If an allegation of assault is made, and a statement is prepared, a charge is likely. Indeed, CPS policy is that where the evidence exists, it is automatically in the public interest to charge. So off we go to court. Your partner, realising that it's all now a bit serious, writes to the CPS, and makes a formal withdrawal statement.

If they're summonsed to attend, but don't, a witness warrant may be issued. This isn't particularly common, so let's leave that aside.

What happens?

The prosecutor offers no evidence, and the charge against you is dismissed. Phew. You get to keep your job, you'll be able to keep paying the mortgage.

Charge dismissed, certainly, but there's more. A restraining order.

The courts now have the power to impose a restraining order upon conviction for any offence. Previously, this power was restricted to offences under the Protection from Harassment Act 1997, and lasted up to five years.

Now, it's any offence. Not only that, but the court can also impose a restraining order upon acquittal where it is satisfied on the balance of probabilities that a restraining order is required to protect the person named.

So, you could end up with a court order telling you not to contact your partner, directly or indirectly. For a significant period of time. Breach of which could result in a custodial sentence measured in years, not months.

I can see the utility of the court being able to grant a restraining order upon acquittal, but it is entirely wrong in principle.

This is the beginning of a slippery slope. We already have conditional cautions, so why not have conditional cautions with restraining orders attached? Why not just text them to people?

"U hv restrng ordr, dnt contct wife or up2 two yrs insde"

And yes, I'm fully aware that (for now) a restraining order is a court order, and requires an appearance before the court.

Tuesday, December 8, 2009

Answer Time Part Two

These are the answers to the questions that were emailed to me. I have removed information that I think could help identify people, or where requested. 

Hi there 

I know it doesn't begin with a 'p' but would welcome your thoughts on the magistracy. I attended court 3 times this year and made an application only to be told that there are no vacancies this year. Faced with the prospect of waiting for another year to apply (with the possibility of there being no vacancies again) I am now questioning whether it is going to be worth it. Based on my experience in court I think I could make a positive contribution and would add some 'variety' to the bench. On the more negative side I have heard from others that it can be quite mechanical and tedious.

I would be interested in your thoughts as someone on the opposite side (so to speak).

I look forward to hearing from you.

Thanks for the opportunity to pose a question

My pleasure. I would encourage anybody with an interest to consider becoming a magistrate. Bystander's blog would be an excellent place to start reading, if you haven't already found it, that is. It is a thankless volunteer position, continually under attack, and is consistently oversubscribed nonetheless. That should tell you all you need to know.

The strength of the magistracy is the variety that comes from its members. People from all walks of life, from unemployed single mums, to Harley Street consultants and bankers, sit as magistrates, judging their fellow citizens, making decisions with life-long ramifications for all involved. It's a position of great responsibility, and isn't to be taken lightly. As far as ages go, many come to the bench later on in life, and their wealth of experience is very much welcome. If you think you have something to offer, persevere with applying. 


Just saw your offer on your blog, so here is my question. 

I am a witness for the prosecution [in a manslaughter case]. I made a statement to the police over a year ago, & the case doesnt commence [for some time]. Can I re read my statement prior to the case?, as over time i'm sure that my subconsious has blanked a lot of it out, It was quite a messy do. & I would not like to cause embarrassment by not remembering on the day. 


Don't worry! Prosecution witnesses are allowed to read their statements as a matter of course before the trial starts. This usually means reading them on the same day. If a witness needs to refresh his or her memory in the box, that is permissible in certain circumstances. Hopefully, the Witness Care Unit at court will provide you with a copy of your statement on arrival, arrange a visit of the actual court room to familiarise you with the layout, and introduce you to prosecution counsel.

You asked for questions. Here is one: Many years ago (back in the late 1970s), solicitors representing people who were likely to be summonsed for motoring offences were able to make written representations to the Chief Inspector in charge of the local constabulary's admin unit in advance of a summons being issued. My solicitor tells me that it is no longer possible to make written representations in advance of the summons being issued (i.e. you have to wait for the summons and then write to the CPS). Is he correct? [The case has already been dealt with, by the way].

Cases are still sometimes adjourned for written representations to be made by defence solicitors as to whether or not a case should proceed / a defendant should be cautioned, etc. These “written reps” are not usually fruitful. Writing to the police is an exercise in futility. They will simply refer you to the CPS. 

If someone is in custody, an experienced defence solicitor with a good relationship with a custody sergeant can sometimes help steer a matter into the long grass. Rarer than hen's teeth these days.

Hi there AP, You asked for questions – here is one. It is a particular bugbear of mine, and the sort of thing that Shami Chakrabati bangs on about all the time, with some justification. It is about the extent of the CPS discretion to bring prosecutions, and what to do if it goes wrong – in the context of offences that are ‘drawn too broadly’.

The favourite example is consensual kissing between 12-year-olds contrary to Sexual Offences Act 2003, but the more topical one is possession of a prohibited weapon contrary to s5 Firearms Act 1968. 

To avoid talking about current cases, let us take an (admittedly extreme) example. 

Albert is a bad guy in Walsall. He owns a sawn-off shotgun, which is a prohibited weapon and he knows it. Tsk tsk.

But he is also old and frail and one day he dies. Bertram is an upstanding and friendly local solicitor in Walsingham. Unfortunately for him he is also the executor of Albert’s will – not that he knows where Albert lives at the moment, or even that Albert is dead, or that he ever had anything to do with guns.

However, as we all know, the property of the deceased immediately vests in his executor (if he has one). So Bertram is now, completely unknown to himself and without any possibility of finding out, in contravention of s5. 

Cedric is a DI, who comes across the said shotgun, tracks down the legal owner (Bertram) and charges him. Don’t blame Cedric, he is desperate for recognition after all the name-calling for being called Cedric – and my goodness is he going to get some recognition. 

Duncan is a dopey prosecutor on an off-day and not given the full facts by Cedric. He decides to prosecute. Don't blame Duncan, it isn't his fault. Given what he was told it was the right decision. 

What happens next?  

Bertram faces a minimum five years imprisonment, removal from the Solicitor’s Roll and loss of his livelihood – all for doing nothing at all, let alone doing anything wrong. It was clearly not in the public interest to prosecute, but on the other hand the facts behind it not being in the public interest do not form part of the offence and are not available to Bertram in defence. 

We all know that things should not have happened this way- but it is too late to fix that now.

So, what should happen next? What can be done?  

Best wishes - enjoying the blog  

phisheep [pseudonym of regular contributor left in]

Fortunately for the upstanding solicitor of Walsingham, the gun legally vesting in him as executor is not enough. The gun must be under his custody and control, i.e. physical possession. 

For example, if you knowingly possess a holdall, but don't know of its contents (usually because you've turned a blind eye), you are deemed to be in possession of its contents. If someone breaks into your lock-up garage, which you visit once a year, depositing several kilos of hard drugs therein, you aren't in possession of them. When you open the garage, touch nothing and call the police.

If the Bertram is charged, his solicitors should write to the CPS asking them to review the matter carefully – they should cite authority as to what possession requires, which can be found in Archbold in the chapter on controlled substances.

In addition, the public interest test must still be satisfied for offences of strict liability. In fact, I'd say it becomes even more important. 

If the CPS are determined to bring such a dangerous criminal as Walsingham's finest solicitor to justice, his representatives could judicially review the decision to prosecute. 

Failing that, I'd ask the matter to be dealt with as a preliminary issue – a voire dire seems necessary, and a sensible Crown Court judge would weed this case out long before it got near a trial court. 

I think the issue is a little more difficult for Bertram if he attends the house of the deceased, finds the gun, and takes it to the police station to hand in. The elements of the offence are now made out.

Strictly speaking, he is liable to a 5-year term for possessing a prohibited firearm contrary to section 5 (1) (aba) of the Firearms Act 1968. 

If writing to the CPS, judicially reviewing the decision to charge, and asking nicely all fail, then all is not lost. The judge still has the power to depart from the mandatory sentence in exceptional circumstances (R v Jordan, Alleyne and Redfern [2004] EWCA Crim 3291). 

Admittedly, if he is convicted of a firearms offence, Bertram risks being struck off, and receiving an absolute discharge may be cold comfort. Likely sentence is a factor in any decision as to the public interest. And round and round we go!

Dear AP,

Sorry if this has been covered before in your blog, but I'd like to know why prisoners always seem to serve only half their sentence? Or is that Daily Mail propaganda?

Surely, time off for good behaviour should be no more time for bad behaviour?


The government has decided that those serving custodial sentences will serve half of their time in prison, and the rest “on licence”, i.e. outside. They are supposed to be watched closely by probation, reintegrated into society, etc. All a great idea, of course, but difficult in practice, and very difficult to understand for those who see people getting 6 months jail being re-convicted after 8 weeks. 

How do you feel having had a successful prosecution when the bench sentence the defendant to 4 weeks immediate custody, burglary non-dwelling, at night, empty building, Serco call the prison, Governor's policy is to release, Serco carry out risk-assessment in the Serco van, and release defendant with the release grant in his grubby mitts? Having never seen the inside of a gaol, of course.

The answer, fairly obviously, is “pissed off”. Someone has something inside a building, that they have (probably) paid for, and left securely locked up. It might be a bicycle, a computer, a TV, whatever. In every case, its theft is a royal pain in the arse – damage to repair, insurance premiums go up, you're stuck without it for days, maybe losing income / mobility as a result. 

Scrotey McDoleScrounger wants it, can't be arsed to get a job and save up money to buy it, and decides that he'll just take it, thanks. Taxpayers' money is spent catching and convicting him, and the bench have decided that the offence is so serious that only custody will do, and in so doing, have ruled out community orders and other rehabilitative sentences. He is then released immediately. The farcical nature of that situation should be apparent to anyone. 

Those of you who voted Labour in the second time round are partly responsible. I say “second time around”, because, in fairness, their 'legislative diarrhoea' approach to the criminal justice system was not apparent in '97. However, this is an entirely typical result of the “legislate first, think later” approach that became rapidly apparent after the first few years of that particular government.

Criminalising so much behaviour, without expanding the prison estate, was not a smart move. Increasing sentences to appear 'tough', or to react to a populist concern, was not a smart move. Legislating in response to headlines, and in order to generate headlines, was not a smart move.

Releasing people early to make space is the inevitable result. Sentences should be exactly what they say on the tin – “8 weeks immediate custody” should be eight weeks of seven days each, not 4 weeks, less 18 days for early release, which makes 10 days inside, instead of the 56 the judge meant. 

I am a student studying law, and have done some work experience with local criminal law firms. Dealing with offences out of court is primarily a game of chance, so I'm told. One police officer would offer cautions for seemingly serious offences, and another would recommend taking someone with no previous convictions to magistrates over things like shoplifting with no PND or simple cautions. I read somewhere that the CPS can refuse to proceed with a case if they feel that a caution is more appropriate. However, I have never known this to happen.

So my question is: can a solicitor / accused apply / appeal for a caution? Or is it just a lottery?

I have personally written numerous emails to officers asking them to arrange for someone to be cautioned. If you get a caution unexpectedly for a serious offence, seek legal advice and seriously consider taking it. If you are charged where you think a caution is more appropriate, you can certainly write to the CPS and ask for a caution to be considered. 

Defence reps and officers alike, take note – even where no admission was made at the time, the caselaw says that if a caution is offered, the offer must be considered.

Take further note – if you are, as the kids would say, taking the piss, then that consideration may consist of as little as three-tenths of a second.

Monday, December 7, 2009

Answer Time Part One

Firstly, my apologies for the size of this reply. I'm certainly more popular than I ever was at school. Those questions which were sent in by email will be answered later this week in a separate post. I make no apologies for being email-ist.

In the comments section of the previous post...

Why isn't everyon who is drunk charged and fined?

Given how big a problem drink is in our cities and the time wasted by ambulance/police/A&E dealing with them instead of more and more silly laws and taxes and price fixing why aren't we using the drunk and disorderly offence and fining every drunk person causing the slightest nuisance?

We'd make loads of money off fines and people would soon get the message that being drunk will get them a fine and a record. So why don't we?

As others pointed out, you'd have to be drunk and disorderly to be fined, and some people do manage to be drunk without being disorderly. Fines are only £80, and quite a few people just don't bother paying them. Which means more court time, and more expense. More to the point, fining everyone is resource intensive – filling in forms and things takes time. If we could persuade the government to fund a zero tolerance crack-down on alcohol-related anti-social behaviour, I'd be astonished.

Ed said...
Why isn't everyon who is drunk charged and fined?

Damn good question, I'd like to know that one as well.

See above.

Nerd for Justice said...

I have a question about the effect of concurrent sentences, a topic that's always puzzled me.

Let's say, for the sake of example, that I'm found guilty of three crimes, A B and C, and I'm sentenced to
12 months for A
6 months for B, and
2 months for C.

When I go and serve my 12-month sentence, how am I affected by the shorter sentences for B and C?

Do they affect early release, or conditions in jail? What practical effect do those two shorter concurrent sentences have?

You aren't affected by the shorter sentences. At all. The only way you can be affected is to appeal the longer one during the currency of the shorter ones – if successful, you wouldn't be released, and you'd then be serving the shorter ones. It may well be that the only effect you feel is further down the line, when you're re-sentenced for a like offence. For example, if you got 12 months for an assault, 6 months for a weapon, and 2 for some drugs, and you were then sentenced for another knife, you could expect a stiff(er) sentence.

Anonymous said...

Hello mr prosecutor , I would like to hear some suggestions from you as to how we could improve the criminal justice system. I'm sure you could write an essay , but just give me a few points. I've never really heard the CPS's ( a member of) point of view.

London PC

I'm afraid a list of what I would change is a very long list. In relation to the police, I would ditch PCSOs and spend the money on proper coppers. I would bin targets for arrests / sanction detections, and bring back the Victorian Policing Pledge as a basis for police action. Fewer cautions, more officers on the street.

Unfortunately, this, and everything else, requires a lot of money – more lawyers, more admin staff. That means it won't ever happen.

Something that is free – a rebuttable presumption that motorists are at fault in a motorist-non-motorist collision. This would bring us in line with the rest of Europe, protect pedestrians and cyclists, and would do more than anything else to alter motorists' behaviour towards vulnerable road users. Motorists need to drop the view that they own the road. “Road tax” is actually vehicle excise duty. For a decent article on this, see the New Law Journal article here.

Oh, and more traffic police – uninsured drivers are rife, and cost the rest of us a fortune. Catching them means proper policing.

Anonymous said...

Two questions

1. has the move to making (nearly) every offence arrestable had a positive impact on the Criminal Justice System

2. do you support the six year rule for the retention of DNA for people not convicted of a crime.

Number 1: No. It's meant that police officers are dragging people back to the station for things that are essentially a waste of time. They are victims of a target culture, though, and I in no way blame them for arresting people!

Number 2: No, I don't. I'm pretty sure Liberty will be helping another case back before the ECHR in due course. The ECHR said retention for life was unlawful, and the government thinks it can pacify them by saying it will only retain for 6 years. I'm not so sure. Those who are arrested but not charged shouldn't be on the database at all. Those who are acquitted shouldn't be on it either.

Collecting the most intimate information that exists about a person and storing it because they were once arrested is a joke. It's clearly an infringement on someone's privacy, and as such, must be proportionate. I don't think the current situation is proportionate. Please do go and have a look at Liberty's website, I can't do better than their summary.

Anonymous said...

Question: Do you think the majority of charging should go back to the custody sergeant?

And of course why or why not.

Deciding what offence to charge often causes much head-scratching amongst fully-qualified lawyers. Despite their wealth of invaluable experience, it is hard to see how a custody sergeant could manage to unravel the legal complexities of a mortgage fraud. So for the complex stuff, the answer's no.

That said, it would save money to get them doing more of the more simple stuff, and it seems the Tories agree with me, and plan to return almost all charging to the police. So for the simple stuff, the answer's yes.

Anonymous said...

Cool. At last someone on the internet is offering advice (free of charge) that might actually be of some practical use to me. I’ve got a question:

“How do you avoid getting caught?”

My considered legal opinion is that you should avoid committing crimes. My clerk will bill you shortly.

[NB - after an accurate response to the earlier question on concurrent sentences, this reader continued...]

For note, it's also a similar situation when a concurrent community penalty is imposed, although they are normally for new offences committed during the term of the existing order and us such may extend the period of supervision.

The Prosecutor would need to enlighten us on the reasons why separate penalties must be imposed on certain offences and why these are allowed to be concurrent rather than consecutive; so that would be my question towards the Prosecutor.

I have no idea what you're on about. Seperate penalties must be imposed on certain offences? Do you mean mandatory minimum sentences? E.g. firearms? If so, the answer is the rule of totality, authority for which was helpfully cited by a reader in the comments section of the Question Time post. In short, offences committed at the same time should be sentenced concurrently. Multiple, repeat offences may be sentenced consecutively, but only insofar as the principle of totality is observed; i.e. the total sentence must be commensurate with the offending.

Consider the person stopped with the following in their possession: a section 5 (1) (aba) firearm (i.e. a gun giving rise to a 5-year mandatory minimum), and a few rocks of crack. They plead guilty to possessing with intent to supply, and the firearms offence. With their two previous drug trafficking convictions, they also get a seven-year minimum term for the drugs offence.

They stand a good chance of the offences being imposed concurrently, not consecutively, and would therefore serve 7 years (half in the community, of course).

To those of you who made it this far, thank you for your attention, and to those of you who wrote an email, thank you for your questions, and watch this space for your answers.


Sophie said...

'Ello! Hope I'm in time for one last question!

I was thinking the other day many people say the prison is the answer, that as the harshest means of punishment we can offer it should be given out as much as possible for as long as possible.

Including youth offenders. However, I have read a great many academic sources that make a good point that prison doesn't really 'work' in terms of reducing reoffending and can even make offenders worse when they re-emerge butterfly like several months later.

A great many people decry the effectiveness of community punishments and other alternative forms of justice and I can see why. The feeling is that they don't work and aren't harsh enough, however true this is I don't know but I can see where they are coming from.

So, what's the middle ground Anonymous? Is it even within the criminal justice system's power to change the way criminals both young and old go about their dirty business?

A big question I know, just wondered what your thoughts were.

In short, I do not think it is within the power of the criminal justice system to reliably reform criminals generally. The recidivism figures speak for themselves. Prison is particularly bad at reforming people. Looking at the causes of crime, and removing them, is by far the more expensive and effective way. Which tells you why we don't do it (cf. "being tough on the causes of crime", circa 1997).

We have had some measure of success with things as they stand, but it's more a philosophical question, to be honest, and one that strays into religious territory, if that's your thing.

Ultimately, picking up litter (unpaid work, or 'community service' as it was once known), or sitting around and talking about his feelings (anger management courses) will not make little Jimmy McStabber into a nice chap.

If it does help him, great, but the CJS is ill-equipped to change people effectively and reliably. But we must try -- that's why we have a Probation Service. So, what purpose prison? Giving the rest of us a break from his stabby antics.

Scott Adams, the author of the Dilbert cartoons, feels that those who say prison doesn't reduce offending are wrong -- for that to be the case, other criminals would have to be committing more crime to keep the average up. It's all about removing from society those who can't be trusted to behave themselves.


Slightly more topical, with the number of rape stories in the news and the recent Sarah Payne report (in addition to the HMICPS thematic review coming out next year) what is your opinion on how the justice system in dealing with complaints of rape?

Thanks! :D

Allegations of rape have never been taken more seriously than they are today. Thirty years ago, a sympathetic but hard-nosed WPC would have explained to a distraught but intoxicated woman that she was wasting her time, and that she should just see her doctor.

Fortunately, things have moved on. As previous posts have discussed here and here, there is still progress to be made, but it will always be a very, very difficult offence to prosecute, simply because it so often turns on what was happening inside someone's head.

Thursday, December 3, 2009

Question Time

Ask me a question. Anything to do with prosecuting, police, prisons, policy, anything beginning with the letter "p", really. Nothing about specific cases, though, for obvious reasons.

theanonymousprosecutor (at) gmail (dot) com

I will endeavour to reply to the more serious queries as soon as I can.