The Anonymous Prosecutor

In the news...

2010-08-17T02:52:00.000-07:00

An unusual defence of duress? Expect the usual "Loophole Lawyer" shenanigans from this story. While I have sympathy with anyone whose domestic pet is trapped beneath the floorboards, who on earth drives an eighty grand poor person squasher, but doesn't have a screwdriver at home?

Drug prohibition doesn't work, and never has. Another person has bravely spoken out as he leaves one of the few positions where he may have been able to actually do something about it.

Expenses, part eleventy million

2010-07-30T07:58:00.000-07:00

The Court of Appeal has spoken, and the Honourable Gentlemen (sic, for now) will be standing trial in the usual way in due course. Except they're going to appeal to the Supreme Court. Who, fingers crossed, will be as scathing as their brother judges in the Court of Appeal.

If they make it to the hallowed ground of Southwark Crown Court, they're royally fucked*.

*This is not legal advice, and should not be treated as such. It should not be relied upon as investment advice, and the length of your sentence can go down, as well as up.

Death by a thousand cuts

2010-07-26T00:35:00.001-07:00

Or, more accurately, unemployment by a single cut, for 1,800 CPS employees.

The Government, perhaps wisely, has told the CPS to cut costs by 25%. The guff in the leaked memo aside, the vast bulk of cutting costs will come, as usual, from sacking people.

Senior Crown Prosecutors making 50-60K a year, who are still knocking about in the mags courts, are extremely high-cost. I can phone chambers and get a third six pupil or junior to cover a court for a hundred and fifty quid. 5 days a week = 750 a week, and if court sits for 48 weeks a year, that's 36K. People earning that much need to be in the Crown Court, saving fees if they are to justify their existence.

But no sick pay, no pension, no training costs, no travel and subsistence. The Bar is starting to look like good value again.

If the budget cut is 40%, however, it's not just 1,800 jobs, it's 3,300, which will cost £70M...

Yours,

the Anonymous Soon-To-Be-Ex-Prosecutor

Ian Tomlinson

2010-07-22T03:41:00.000-07:00

I suppose I should say something about this.

The facts are set out clearly in that report. What isn't mentioned is the fact that the police originally asserted that the paramedics were pelted with bottles and prevented from treating Mr. Tomlinson by the crowd at the scene. That didn't happen. Although, given the police officers = bastards starting point that a lot of people take, I can understand a defensive attitude. Porky pies cross the line, however.

Anyway, the DPP didn't want to deal with that, but I'm a shite sight less sensitive or politically exposed, so there you go.

The decision itself...well, it's fully argued, and appears to be from someone who has carefully read the papers. It's in the minority there.

The part I'm struggling with is this:

The separate strike with the baton was also considered. It had left patterned bruising. But where injuries are relatively minor, as these were, the appropriate charge is common assault in accordance with the CPS Charging Standard, which is applied nationally. This Charging Standard was applied in another incident arising from the G20 where a police officer had struck the complainant twice with his baton.

What it doesn't say is whether it was applied to not charge that officer, or whether it was applied to charge the officer. Slightly unclear phrasing, perhaps.

So what do the Charging Standards actually say?

16) However, there may be cases where the actual injuries suffered by a victim would normally amount to common assault, but due to the presence of serious aggravating features, they could more appropriately be charged as actual bodily harm contrary to section 47 Offences Against the Person Act 1861.

17) Such serious aggravating features would include:

a) the nature of the assault, such as the use of a weapon, biting, gouging or kicking of a victim whilst on the ground, or strangulation which is more than fleeting and which caused real fear to the victim; or

b) the vulnerability of the victim, such as when the victim is elderly, disabled or a child assaulted by an adult (so that where an assault causes any of the injuries referred to in sub-paragraph (vii), other than reddening of the skin, the charge will normally be assault occasioning actual bodily harm, although prosecutors must bear in mind that the definition of assault occasioning actual bodily harm requires the injury to be more than transient and trifling); or

c) other circumstances when though the injuries are relatively minor the existence of aggravating features mean that the sentencing powers of the court may not be adequate. Refer to the section on Defences to assaults below.

I would suggest that a) - c) do not form an exclusive list and the fact that the suspect was an on-duty police officer could properly be said to be a serious aggravating feature. I have also decided on previous occasions that, for instance, using a piece of wood justifies a charge of ABH where the only injury is minor bruising. This is a matter of opinion, and the DPP clearly doesn't share mine.

So, then. Why didn't we charge the officer with common assault?

Common assault does not require proof of injury, but it is subject to a strict six month time limit. That placed the CPS in a very difficult position because enquiries were continuing at the six month point and it would not have been possible to have brought any charge at that stage.

Ah.

Sir Richard Mottram

2010-06-23T01:15:00.000-07:00

Rumour has it that 150 mags courts will be closed, and a further 30% lopped off the legal aid budget.

To quote a phrase widely attributed to the abovementioned gentleman in the wake of the 9/11 news-burying fiasco;

"We're all fucked. I'm fucked. You're fucked. The whole department is fucked. It's the biggest cock-up ever, and we're all completely fucked".

For "department", read "legal aid system and the Magistrates' Court".

I would apologise for my language, but if you're more offended by a spot of anglo-saxon than the gross injustice that will inevitably result from such cuts, you need your head examining, and merit further such language, probably questioning your parentage and breeding.

POW! Right in the kisser.

2010-06-17T00:22:00.001-07:00

This, for me, encapsulates the dilemma of lone police officers. The officer cannot control two people at once, and has to make decisions very quickly. He can't call for back up, because he's fully occupied trying to restrain a dangerous master criminal suspected of crossing the road other than on a pedestrian crossing. This isn't about jaywalking laws and personal liberty, though.

Any police officer is trained to be paranoid, on either side of the pond, and for good reason. You just don't know what people are carrying, and being surrounded by an angry crowd is extremely dangerous.

So the officer did what he clearly felt necessary in the circumstances as he perceived them. He had the first girl's arm in a swan neck hold -- holding the forearm vertical and pushing the hand inwards towards the elbow. Another person intervened, and he punched her in the face. I make no comment as to that -- he was there, essentially fighting with two people. I have the luxury of watching it on the internet, with a slo-mo replay.

The real point of this story is that the Seattle Police Department who sent him out alone have accepted that their policy has consequences, and have supported the officer, by saying it's up to him what force he uses. Metropolitan Police Service, take note. If you pursue single-crewing, one of your officers will end up being filmed using Home Office approved distraction technique number 15 -- a punch in kisser. When that officer ends up on Youtube, please have the courage to support their actions in preserving their personal safety, caused entirely by your policy.

Expenses

2010-06-11T07:04:00.001-07:00

Four parlimentarians who were caught with their hand in the cookie jar, have been asserting that their claims are subject to parliamentary privilege, and that they cannot stand trial. A judge in the High Court has just thrown that claim out, noting that there is 'no logical, practical, moral or legal justification' for expenses claims being covered by privilege'. Ouch.

They have permission to appeal, and will be doing so. Court of Appeal will take a while, but I'll keep my eyes open.

The charges are interesting -- false invoices feature in some! The 'a bigger boy made me do it' defence, as given short shrift by headmasters everywhere, is one thing, but just forging documents is quite another. Hopefully the sentencing will match this disgraceful behaviour.

Planning, erosion of public confidence, abuse of trust, sophisticated offence, high value, long duration...lots of aggravating features racking up against the Right Honourable Gentlemen and the Noble Gentleman. I'll add suitably mocking quotation marks around 'honourable' and 'noble' if they get convicted.

Extraordinary behaviour.

Moneybags

2010-06-09T01:26:00.001-07:00

The Conservative-Liberal coalition is busy cutting budgets, but somehow the CPS managed to a sum in excess of 370,000 of your English pounds to spend on its website. In five years. That's design, creation, maintenance and hosting.

That's just the wedge that went to the IT peeps. Doesn't include the money spent / wasted on internal staff coming up with "user-targeted content" or whatever they call 'copy' these days.

Now, quality design is not cheap, and I'm not one of those idiots who thinks that any old idiot can design a website. It contains a lot of information, it's OK to use, and I do use it regularly (charging standards and that).

But 370k? Worse, they won't say who tendered for the project. The Guardian helpfully chipped in with a FoI Act request, in which my employer kindly pointed out that they carried out a tendering exercise for a 3-year, £45,000 project.

Quite how that became a 5-year, £370,036.35 project is a little beyond me, but then I'm just a hack lawyer -- what would I know?

I recommend the full story, which can be found over at the Guardian.

But it's all OK, because we're about to 'name and shame' those who earn more than 55 grand a year. Which will include every Crown Advocate in the country. Fiddling while Rome burns, perhaps?

DECLARATION OF INTEREST -- I will not be appearing on the list. In an entirely objective and not at all bitter way, I will be examining it closely, however. I shall report any interesting findings here. Don't hold your breath.

Rape and anonymity

2010-05-20T23:51:00.001-07:00

The Lib-Cons have opened up a rather old can of worms with this particular idea -- giving those accused of rape the right to anonymity.

It has been branded an insult by some groups, who feel that the focus should be on low conviction rates, and not on the few claims that are false. But on what basis do they say that few claims are false? On what basis do they say that most of the claims are true?

To find out whether there is any truth in a claim, it must be tested in court, and tested rigorously. And they are. And the conviction rate is not high.

The conviction rate for rape cases that go to trial is lower than for other crimes: 44% in London, as against 80ish% for general crime. Why does this gap exist? Simple. Jurors are believing alleged victims of rape less often than they are believing alleged victims of other crimes.

To change this, you'll need to change how jurors think. Which is a slightly bigger issue than can be solved by getting judges to make so-called "rape myth directions".

A jury must be satisfied so that it is sure that the facts constituting the offence took place, and that the mental element of the offence, where required, was present. When one considers the consequences for those convicted -- incarceration for many years -- it is only right that the allegation made against them be tested thoroughly.

Conversely, when one considers the particularly abhorrent nature of the crime of rape, and its potential for lifelong effects, it is only right that those convicted are incarcerated for many years.

As things stand, the conviction rate in London is below 44%, and it's 58.2% nationwide. That's a lot of men who have stood trial for rape, and a lot of women who haven't been believed by the jury, for whatever reason.

Given the effect of an unfounded rape allegation, and the publicity that can ensue, if more than half of the men who stand trial for rape in London are being acquitted, maybe anonymity's time has come. Again.

Racism, yet again.

2010-05-19T12:23:00.000-07:00

Anyone remember that chap I wrote about a little while back? The one who had a quiet word with the papers?

Apparently the CPS gave him the old heave-ho. Gross misconduct, my sources say -- making up racist complaints.

You couldn't make it up. Apparently, he did. If half of what I hear about this racism thing is true, I'd like to know when to expect my automatic evil white man promotion...I fancy a crack at being DPP if that's OK, boss?

The Tory Lib-Dem Coalition

2010-05-16T02:13:00.000-07:00

The last few days have been an extended lesson in what passes for a constitution in this country. Rolling news channels have been explaining the protocol to the masses, and the masses still don't care. I am relieved that the country now has functioning government.

In case you were under a rock, the Tories have struck a deal with the Lib Dems to govern. No sooner have they begun than they have gerrymandered parliament to protect their weakened mandate -- the 55% rule. 50% + 1 MP used to be required to force a vote of no confidence. Now it's 55%. Why? Because the Tories and the Lib-Dems can muster 46%, or thereabouts, thus ensuring that they are safe as long as the coalition holds.

And how long will that be?

William Hague, if my memory serves me, campaigned under the slogan "24 hours to save the pound" in 2001. He's now the Foreign Secretary of a coalition with the Lib Dems. Clegg speaks five languages, has a Spanish wife, a Russian grandparent, and has worked in Brussels. It's time the Tories faced up the reality -- we signed our sovereignty over ages ago, beginning as far back as the Treaty of Rome. It's far better to seek a strong position in Europe than deny the truth.

New government:

POSITIVES

No more ID cards. The ID card database was a data protection catastrophe waiting to happen, not to mention a totalitarian wet dream.

Some sort of posturing in the direction of civil liberties / rolling back the surveillance society.

Dominic Grieve QC is the new Attorney-General. Well-regarded within the profession, a 'lawyers' lawyer' as the papers are saying.

ELECTORAL REFORM -- the big one! Hurrah, our votes will be worth the same, and the in-built advantage for Labour is gone. I don't have anything against Labour, but getting 4% more of the popular vote, but five TIMES more seats than the Lib Dems is just crap. Although I note that the Tories will whip through the vote on the referendum, but leave MPs free to campaign against electoral reform. Sneaky buggers.

No more pre-charge advice for summary offences, as per Tory manifesto. Hopefully, the sergeants in the local nick will continue to do what they've always done -- apply common sense, rather than the niceties of the latest diktat from Whitehall. If a complicated harassment comes in (summary), they'll be on the phone / lurking near my desk. If a big punch up comes in and they can see the CCTV, then hopefully they'll just get on and charge it, maybe a quick phone call to check that a black eye is summary only, or an opinion on mode of trial for a broken nose.

NEGATIVES

Erm, where to start? The usual crap in the manifestos of both sides.

The Tories bleat about building prison capacity, but there isn't the cash for that. They say that they are going to 'let criminals know that they can expect a prison sentence for carrying a knife'. Except that that's what we already have. Sentencing guidelines saying something worthy, and courts giving the sentence that they feel appropriate. If parties really wanted to get tough, it'd be a mandatory five year sentence for knife carrying, just like guns. The truth is, nobody's that bothered.

Lib Dems -- probably going to be disappointed on everything except electoral reform, and that too if Murdoch throws his not inconsiderable weight behind the Tories in a campaign to keep first past the post.

Hopefully, they'll begin with the bonfire of laws they've been promising. I hope we can trust the Lib Dems to keep the Human Rights Act 1998 away from the lighter fluid.

Makes you proud, doesn't it?

2010-05-11T11:16:00.000-07:00

The government (last government, now) is chipping away at certain aspects of justice, and riding utterly roughshod over others.

The latter is behaviour more suited to a banana republic than England. Hopefully this sort of thing will help the new lot to remember that we can be as bad as anyone else.

Don't hold your breath, though.

Election Fever

2010-04-28T23:43:00.000-07:00

It's been a while since I've had anything worthwhile to say. In lieu of something worthwhile to say, let's talk politics.

Traditionally, historically, it's been along the lines of "Vote Tory, Vote Hanging", with other parties taking a more liberal stance.

Since Blair, however, the rules have changed. "Tough on crime, tough on the causes of crime"? Labour. "Hug a Hoody"? Tories.

Blair and his motley crew, despite most of them being qualified lawyers, have succeeded in thoroughly shafting the criminal justice system. I don't say that lightly. Legal aid is dying on its arse from a thousand cuts. The courts are bursting, prisons likewise. The government announces a new crack-down every day, without providing the funds for these people to be represented or held in custody if they're convicted and sentenced in that way.

Worse, the only disposals with a realistic chance of reform, like drug or drink treatment orders, are even less well funded.

To top it all off, they've used the spectre of MUSLIMS COMING TO KILL US IN OUR SLEEP to pass a whole raft of thoroughly illiberal and unnecessary laws. They have created literally thousands of criminal offences. They've armed under-qualified officers with lethal tazers, they've introduced PCSOs (two whole weeks training!), they've allowed disgraceful policing of peaceful protests (kettling, etc.), and they've presided over the introduction of the targets culture.

And don't even get me started on the illegal wars.

The question is, though, would anyone else do better? I won't waste anyone's time going through policies, because as fine upstanding citizens, you should all be doing that in the process of deciding how to cast your respective votes.

The reality is, Labour didn't put any money aside during the good years, and now the lean years are here (hastened, in no small part, by their 'light touch' regulation of the financial markets), there's nothing in the storehouse. So whoever takes power on May 6, it's a bit of a poisoned chalice -- cuts aplenty lie ahead for all of us, and especially those of us in the public sector.

So, to those who have a vote -- consider your options carefully, but know this -- it's a bumpy ride ahead.

To those who are part of the criminal justice system, in any capacity whatsoever, and earn their living from it -- God speed and good luck -- you're going to need it.

Assault with a deadly weapon?

2010-03-18T01:35:00.000-07:00

That's what the Americans call it, anyway. I don't quite know how I'd have been able to open this case. I don't think I can trust myself to say any more on the subject, or this post will just degenerate into jokes about truncheons.

The Tyrant's Gambit

2010-03-12T10:00:00.000-08:00

Milosevic, Hussein, Charles I, and many others have refused to recognise the jurisdiction of the various courts that tried them. Charles I found his refusal to enter a plea taken pro confesso, i.e. as a guilty plea. He was executed, and that was the end, for a short while, of the idea that rex WAS lex. Still, Charles II sorted out those uppity lawyers, mainly by killing them in a variety of horrible ways.

Geoffroy Robertson QC has written many books dealing with war crimes, all of which deal with the refusal by a toppled leader to recognise the jurisdiction of the court to try him.

The Bill of Rights holds that "proceedings in Parliament" shall not be discussed before a court. The three members of the lower House, and the one peer to have been charged in what has become known simply as "The Expenses Scandal", are all backing the same horse. They will argue (and the issue will no doubt be decided as a preliminary issue at the beginning of the trial proper) that their claims for expenses to which they may or may not have been entitled were "proceedings in Parliament", and that the principle of the separation of powers should not be infringed, and the judiciary should not interfere with the legislature.

MPs are free to make all sorts of slanderous statements on the floor of the House, their freedom of speech is well-protected, and rightly so. Where, though, is the line to be drawn? Is the separation of powers a constitutional principle to which the judiciary are so highly attached that they will cast the defendants upon the (apparently abundant) grace of their internal disciplinary proceedings?

I would tentatively suggest that the highest courts in the land will be asked to rule on this issue only when we are well into the next parliament, however that may be constituted. Much ink will no doubt be spilt. All I will say at this very early juncture is this; claiming many hundreds of pounds a month in interest repayments on a mortgage that was long-since paid off is clumsy at best and criminal at worst. It certainly won't win you many votes.

I will also add that my cockles were well and truly warmed when I heard that the application for the men to remain in the well of court was given the short shrift it deserved. Such applications rarely succeed, unless the defendant is in a wheelchair, deaf, or has some other inherent incompatibility with being in the dock. The Right Honorable (sic) gentlemen had no such difficulties, as far as I am aware.

Given the publicity that will inevitably attach to the first appearance by members of parliament before the criminal courts since the 17th century, it seems that they and their lawyers failed properly to consider the public relations ramifications of such an application.

Penelope Schofield

2010-03-09T05:58:00.000-08:00

In answer to a question previously posed, the county in which a practising coroner has a conviction for perverting the course of justice is...drumroll please... West Sussex.

Take a bow, Ms Penelope Schofield, a former prosecutor. Ms Schofield went to prison for lying to protect her detective boyfriend.

Unsurprisingly, her stay in Holloway wasn't a pleasant one.

West Sussex had the following to say:

West Sussex County Council has no reservations about the coroner's suitability for office. She fully disclosed details of her background when she was interviewed for the position. Members of the Appointment Panel were able to give the facts full consideration. The decision that she was the best candidate for the position has been reinforced by the outstanding professional abilities she has brought to the role.

At least she's a good coroner, eh?

A lay bench or a DJ?

2010-02-24T23:42:00.000-08:00

The Bystander blog, written by an anonymous magistrate, has a readership to envy. However, the comments section will quite often degenerate into serious discussion and legal analysis, neither of which have any place on the Internet. On a recent post, an apparent colleague held forth thusly:

"...Most prosecutors breathe a huge sigh when a bench wanders into court. Id rather a DJ any day. At least the work gets done quickly and by applying it to the sentencing guidelines instead of a bunch of middle class volunteers trying to square a round hole into their concept of justice...."

So, do prosecutors prefer a lay bench or a DJ? Well, in a typically lawyer-like fashion, the answer is, "it depends".

Timing

If I haven't had time to read the files (perish the thought), then a lay bench known for a fondness of tea and biscuits is a blessing. I have time to read, and they may occasionally have to retire to consider a decision when a DJ wouldn't have to do so.

External events can also have a motivating effect. An extremely popular London and Western Circuit DJ has, for example, been known to speed proceedings along to such an extent that the afternoon session of the final day of the fifth test was enjoyed in full. By those of us who have time for such fripperies, and didn't have to scurry back to the office, that is.

As HMCS continues its drive for efficiency, or "churning", as I rather disparagingly call it, such matters will continue to be important, and speed will continue to be the "benchmark". But what about the quality of justice?

Quality of justice

That is such an ephemeral notion that regrettably, a little discussion is unavoidable. Acquitting the guilty and condemning the innocent, the Lord detests them both (Pr XVII.XV). That is the nub of the problem. Short of the very highest court, before which, we are told, we each make but one appearance, the best we can do is to examine the evidence with rigour and a scrupulous lack of bias.

I have been reading Souvenirs from the Crown Court, a book by Andre Gide about his jury duty. The jurors at the turn of the last century were regularly voting to convict people they felt were guilty of something, if not this particular crime. Such practices, I hope, are rare today.

I have, thus far, been extremely lucky in my career, and have rarely encountered a bench which has given me cause to stop the drinks trolley on the train home. Occasionally decisions don't go your way, and you're convinced they're wrong, but that's the point -- it's their decision that counts. I will add that it's basically a waste of type stereotyping a lay bench; the diversity is astonishing. I have appeared before a Harvey St consultant, a director, and an unemployed single mother, all on the same bench.

Slightly more often, however, I have had reason to believe that one or both of the wingers are, let's say, a little sharper than the chair. Experience has taught me that it's not sensible to say "Look, just ask your wingers, Sir, they've got it already, and I'm about to miss the fast train back to town."

That said, the quality of decisions is very high. I rarely encounter decisions that I think are wrong, and I rarely encounter wild departures from the sentencing guidelines -- DJs are more prone to that, if anything.

Summary

I relish a good legal argument with an interventionist DJ who clearly thinks I'm wrong. I love winning such arguments even more, even if that seldom happens. Such pace and to-and-fro legal debate is rare (but not unheard of) with a lay bench. For a long list or a juicy trial, you can't beat a good lay bench. They are well-trained, sensible, unvaryingly polite, usually quite jovial, and I have almost always enjoyed appearing before lay benches. They have a healthy dose of cynicism where required (namely, when the prosecutor is making legal submissions), and usually grasp the human aspect of the case very quickly.

So, in summary, it depends.

The future?
I find it quite sad that the government seems so intent upon eradicating lay benches entirely. For me, a sensible way forward would be to extend their sentencing powers to two years, keep more work out of the Crown Court, which is by far the more expensive way of doing things, and have more lay benches doing trials.

More racism

2010-02-24T06:04:00.000-08:00

That poor Commander Ali Dizaei is, as predicted very recently, having a torrid time in one of Her Majesty's less comfortable hostelries.

The only surprise is that it took someone this long to attack him, and that it wasn't more serious. In fairness, he was sentenced to custody, not to having his lights punched out, and having the contents of a slop bucket chucked over his head.

Not that my local DJ doesn't look like he's fantasising about being able to impose such a sentence...

How long before Dizaei accuses the prison of racism?

Racism

2010-02-22T05:06:00.000-08:00

Firstly, I will declare my interests. I am white man, who saves his black Wine Gums for last, uses black ink on white paper, prefers white meat when Christmas comes round, and who would not describe himself as a racist. But then again, who would? Even the BNP are now accepting non-white members.

A little while ago now, a Ms Halima Aziz was awarded £600,000 in compensation. She arrived at court in the days following September 11th 2001, and made a remark to the security guard about Osama Bin Laden. A scuffle of some sort broke out between two groups of youths at the court, of differing minorities, who were, as I understand it, present to answer charges relating to the Oldham race riots. Ms Aziz was accused of starting what was described as a 'riot', and was suspended.

As a result of the way the CPS treated her, she was awarded £600,000. The award was in relation to racial discrimination. Including costs, that little shambles cost you and I, the humble taxpayers, more than a million quid. We all have an interest in that sort of thing not happening again.

Now, the CPS is again being accused of racism.

Lewisham CPS is the borough with the dubious distinction of having received a little bit of a kicking in the most recent inspection by Her Majesty's Crown Prosecution Service Inspectorate. The CPS, by way of Gary Dolby, the Borough Crown Prosecutor in charge of Lewisham, issued a press release.

To my mind, the Independent article simply doesn't ring true. For example, Ms Riley alleges that the management "undermined her when she was in court prosecuting cases". Management never get within undermining distance of a court room, so that bit at least, has got to be rubbish.

So, it's clearly a troubled borough. But is it a racist borough? Mr Ebuzoeme and Ms Riley clearly think so. A few anonymous phone calls to my equally anonymous sources have established that the two individuals are both off on long-term sick leave, so I can't probe any further into the detail of their complaint.

Before we delve any further into the murky and perhaps racist world of the CPS, I will become serious for a moment, and say that I sincerely hope that neither of my colleagues are suffering from anything serious, and that they are both able to return to being effective front-line prosecutors in the near future. Their colleagues could do with the help, it seems.

Anyway, curiosity, other than being that which killed the cat, is a character trait that any lawyer would do well to cultivate. It struck me as odd that these two individuals would consent to the Independent publishing their full names and place of work, plenty enough to obtain very personal information, e.g. home address, number of children (on the electoral roll, for some reason), company directorships, etc. etc.

So, I decided to see what their full names could get me. I started with the most useful of research tools, Google.

Tycia Riley's name appears only on French and Belgian sites, in relation to the terrible murders of Bonomo and Ferez. It is reported that she was the lawyer who dealt with the initial remand hearing for Nigel Farmer.

Mr Ebuzoeme's name appears more often. In the Nineties, he stood trial for an affray. There is nothing at all unusual about that. There are plenty of prosecutors with convictions, so a prosecutor who has previously been acquitted is a bit of a non-story.

It seems, from my rapid Googling, that there was a wider context of an employment dispute. Given today's article in the Independent, I was curious. The CPS has a good policy about complaint handling, and investigators are appointed from senior management in other offices to ensure impartiality. The spokeswoman to whom the Independent spoke was clearly adamant that the claims were spurious and / or had been dismissed by internal investigation.

I wanted to know, does Mr Ebuzoeme have a history of spurious complaints, as the CPS seems to imply? Were there previous racism complaints? Does that make any difference to how I should view my employer? Was he just the victim of racism on two occasions in his life (unfortunately, not an uncommon occurrence)? Can I, as a white man, expect a promotion over my non-white colleagues? Or at least nicer biscuits?

More googling, and it turns out that Mr Ebuzoeme, during his academic studies in the Nineties, was involved in student politics. He was elected to a sabbatical office by a London university, and then dismissed. A complaint was made and proceedings brought. Almost ten years later, preliminary matters were still rumbling on in the House of Lords, which was hearing an appeal against various striking out orders from lower jurisdictions. Their Lordships directed that the matter be given a full hearing.

It received a full hearing in 2003, some two years after the Independent says Mr Ebuzoeme joined the CPS. I found the judgment of the Employment Appeal Tribunal here, on Bailii, a wonderful and free legal resource. It makes interesting reading.

The decision of the Employment Tribunal was said by the EAT to be "unassailable" (paragraph 88). Neither tribunal found that there was any discrimination, and rejected the evidence given by Mr Ebuzoeme in respect of alleged racism by members of the university. In particular, a Mr McCormack, a South African gentleman, was accused of having "...a background in the South African Army or Police or in the administration of the apartheid system in South Africa. These allegations were rejected by the Employment Tribunal which found on the contrary that he was firmly anti-apartheid."

Mr Ebuzoeme, then, has previously made allegations of racism. The Employment Tribunal rejected them, and the EAT upheld that decision. He represented himself as far as the House of Lords, in an area of law not his own. That takes some courage, as appearing before higher courts is a nerve-wracking experience. He now accuses the CPS of seriously racist behaviour, far beyond that which was previously alleged; going as far as actual segregation of lawyers by colour.

Which is it? Is he a vexatious litigant, relentlessly pursuing spurious claims of racism? Or is the CPS an institutionally racist organisation, within which he has suffered, in the 21st century, segregation? Only time will tell, and I look forward to the Employment Tribunal's decision in the latest matter.

And at a million quid a pop, the taxpayer should care, too.

Commander Dizaei

2010-02-08T11:51:00.000-08:00

It seems that a particularly odious bully, who was abusing his position of trust, has received his just desserts. Four years might not seem a long time, but for a man of good character, two years in prison, of whatever category, are going to be distinctly unpleasant. For a policeman, it's going to be even worse.

He'll certainly lose weight, let's put it that way. Maybe he'll be joined by some MPs in due course?

On a side note, can anyone guess in which county a practising coroner has a conviction for perverting the course of justice?

HP Sauce

2010-02-05T05:47:00.001-08:00

Well, well, well. I have to say, I am slightly surprised by the outcome of the expenses scandal. The high-profile stuff doesn't come anywhere near me, obviously, so I know nothing of the details, but I fully expected the usual flannel; "not enough evidence for realistic prospect of conviction, blah blah blah".

Anyway, here we are, three MPs and a peer have been charged. They are to be served with a summons to the City of Westminster Magistrates' Court, which is of course their local. It's on Horseferry Road, a short walk from the Sovereign's Entrance (although I strongly doubt they'll be walking there).

The magistrates will send the matter to the Crown Court, as it is triable on indictment only (I am open to correction on this last point, as I don't have my Archbold at hand, and am guessing at the mode of trial.) There will, I imagine, be no indication of plea, and all four men will have jury trials in due course.

Section 17 of the Theft Act 1968 makes it an offence to furnish information for any purpose, produce or make use of any account, or any such record or document, which to that person's knowledge is or may be misleading, false or deceptive in a material particular. This must be done dishonestly, with a view to gain for himself or another, or with intent to cause loss to another.

"Dishonesty" is according to widely prevailing standards, basically. It's called the Ghosh test, named for the reported case of the same name, funnily enough, and is pronounced with a long 'o', like a frightfully posh person saying "gosh".

The standard is that of "ordinary decent people". The phrase used to be "man on the top deck of the Clapham Omnibus", but I suppose times have changed, and such people may be more likely to relieve you of your wallet than be honest. In any event, if an act is dishonest by that standard, it is only dishonest in the Ghosh sense if the accused must have realised that what he was doing was dishonest. Then, and only then, may the jury convict.

It's not a simple definition, and as you can see, the right 'honorable' gentlemen concerned have a certain amount of wiggle room.

My learned readers will note that I haven't discussed the destruction of records part of the offence. That was a deliberate decision, based solely on a wildly uninformed guess that the facts weren't anything like that. So there.

Scammers

2010-01-25T01:42:00.001-08:00

Partly inspired by the previous post about bomb-non-detectors, I'm expanding into general frauds.

Account take-over fraud

Broadly speaking, someone impersonating you will telephone your bank, give the right answers, and transfer the money in your account to their own, then withdraw it.

Alternatively, they may obtain fake ID in your name, open a joint account with a confederate, then transfer the money across, leaving the hapless confederate to go to a branch and attempt to withdraw £10,000 in cash. That didn't work too well, the confederate got two years inside.

MORAL OF THE STORY: Have passwords that are difficult to guess (no pet's names, kid's names, dates of birth, address, 1066, 1966, 1945, etc.)

This type of fraud is similar, but distinct from...

Identity theft

Someone assumes your identity, obtains official documents, bank accounts, etc. and eventually arrives in a position where they may apply for credit in your name. They do so, taking the money, and allowing you to clear up the mess. Forget the mortgage, you probably won't be able to a mobile phone until this one gets cleared up. Even *attempts* at ID fraud will show up on your credit record, as it is usually committed by applying for credit.

MORAL OF THE STORY: Shred ALL personal correspondence before disposing of it. Guard your personal data with your life. It's not paranoia if they're really after you. I've opened a bank account before now using nothing but a mailshot about car insurance. It's harder these days, but not by much.

Advanced fee fraud

The 'classic' or 419 scam. 419 is the provision of the Nigerian Penal Code prohibiting such behaviour in Nigeria. Most of the fraud is from Nigeria, for some reason. 419eater.com is worth a read if you have a spare afternoon and need a laugh.

How does it work? First, the carrot -- a cash lottery prize, a suitcase full of money, a box of gems, gold bullion, money in escrow accounts, whatever. The hook is, they want to share it with YOU, yes YOU.

Touched, you correspond at length. It turns out they need to bribe customs officials / pay registration fees / whatever. Would you please wire the money to me, by Western Union? Ta. Needless to say, you never hear from them again.

MORAL OF THE STORY: If it sounds too good to be true, it is.

Deposit fraud

Particularly relevant for flat-hunters or car-buyers, this one. You see a nice one, cheap, good area / low miles (alarm bells should be ringing already...).

Anyway, they want to show it to serious punters only, so prove you've got the money for the deposit please. How? Oh, why don't you just wire some money to your mate, by Western Union, and email me a picture of the confirmation slip?

You do so, and they just take the money -- the picture of the confirmation code is all they need. Off they trot to their local Western Union branch, and jackpot!

MORAL OF THE STORY: avoid Western Union like the plague.

Cheque fraud

Many and various forms. Generic principle: the fraudster must engineer a situation by which you need to give him some money or valuable object, like a car. This may be by overpaying you for something, the excess to be sent to him from your account. This may be by him giving you a cheque in exchange for your nice motor vehicle.

In all variations, your money / valuable consideration is handed over against a cheque. This cheque will be stolen or forged. The money will appear on your bank account. Many banks call this 'pre-clearing' or some such rubbish. It's nothing of the sort. The cheque can be reversed up to a week later, and the money will magically disappear. By which point, of course, your money is long gone.

MORAL OF THE STORY: nothing valuable should leave your possession until the cheque has cleared. A UK cheque takes SEVEN WORKING DAYS to clear. Even electronic transfers can be reversed on occasion. Cheques drawn on foreign banks take MUCH longer.

And finally, in reply to one of the comments on the previous post, about cheque fraud...

Arnold, saying 'you don't have to be stupid or greedy to fall for a scam' is not entirely accurate. The lawyer scam you mention, is in fact entirely typical. The fraudster contacts a lawyer purporting to be a director at a prestigious company. The lawyer checks it out online, it looks good, mentions in newspapers, etc.

They need help collecting debts from recalcitrant clients of their, which funds are then to be forwarded on to the company.

They give contact details of the 'non-paying customer', who is, of course, the fraudster by any other name. They 'pay up' using a stolen or otherwise fraudulent cheque.

The money goes into the lawyer's account, AND THE LAWYER FORWARDS THE MONEY TO THE COMPANY WITHOUT THE CHEQUE HAVING FULLY CLEARED.

I've put the stupid bit in capitals to help you out. Actually, the really stupid bit is not checking the client out properly. Best thing is to ask for a name, call the listed number for the company, and ring them, asking to be put through. If it's a scam, "no-one by that name works here, I'm sorry", if not, one satisfied client, impressed by his cautious and thorough lawyer.

The lawyer described himself in the following terms; "I'm a capital 'D' Dumbass". For a man with 23 years' experience, that's probably a little harsh, or at least I hope so, for his clients' sakes. He dropped his guard, and didn't verify a client's identity. And it cost him $182,500. Ouch.

MORAL OF THE STORY: Be careful, everyone.

WTF?

2010-01-22T14:29:00.000-08:00

Confronted with this story, I could only exclaim something rather rude. Turns out that James Randi, famous sceptic, has offered the man $1,000,000 to prove it works. The Beeb are saying he made $85M out of something that doesn't work, so I don't think he'll be after the million bucks any time soon.

There's a happy ending, though. Actually, happy for everyone other than the manufacturer.

I am very envious of the prosecutor that will get to open the facts for that particular case. The 'bomb detector' appears to have been an RF tag, as seen on frozen chickens and bottle of booze in this part of the world, and NO OTHER FUNCTIONING PARTS. Bloody hell.

So, I started wondering how so many people were taken in for so long. And then reality came crashing back in. Fraud relies on stupid people, on people who will believe anything. Suitcases full of cash in Nigeria that need customs fees paying. Lottery prizes for lotteries you haven't entered. Genuine examples, of course, which keep me in business to a certain extent.

Remember, if it sounds too good to be true, it probably is. Unfortunately, if you're reading this, the chances are you don't need the warning. And if you have no idea what I mean by that, then you should know that I have a package in customs with uncut diamonds in it, and I just need £12,800 to get it out. It's worth £14M, and I'll give you half. Wire me the money and I'll let you know.

It wouldn't be fair to bay for someone's blood (in a legal sense, of course), without giving him a right of reply. So here's an excerpt from his blog...please don't read it if you're of a scientific bent, as your head will explode.

Dear Annon. Your statement is totlally away from what the basic concept of how the product works. You are over-complicating the simplicity of the devcie as it is not detecting the 'static-electric' fields of any of the substances.
Simply explained....the unit is acting like a pure passive receiver. It is emitting nothing but 'tuning' to the the substance being detected. However, because of the very low emitions given off by the substance, it is necessary to generate a very high voltage that can only be created by something lke static-electricity. It is the combination of both this and the units 'receive' to detecting these very low emitting signals.
I hope this may explain.

To this uninformed, ill-educated observer, it appears to be, as we lawyers say, 'utter balls'. I will follow with interest.

Click if you dare, for more.

Sun! Sand! Definitely no sea!

2010-01-11T03:24:00.000-08:00

And to cheer you up, something from sunnier climes, Arizona, to be precise. It seems the state legislature failed to pass a statute that presumes delivery of anything that the State says it's posted. So unlike this great country, unless a speeding fine is served on you personally, it will expire. Seems quite sensible, as it means the police will concentrate on the more serious offences. The law of unintended consequences has swung into action, and the state has ninety MILLION dollars of fines outstanding. Outstanding!

Lest we all get teary-eyed at the prospect of getting out of second gear and above the six miles an hour we've all been doing recently, consider this: more than 40,000 people a year die on the road in America.

My strictly amateur analysis is as follows: deaths per distance unit travelled, the Yanks are way ahead because of the huge distances they drive. For example, in 2004, it was 1.46 deaths per 100 million vehicle miles travelled. In 2007, in the UK, this was 48 per 100 million vehicle kilometres. So per mile, it's above 60. Three years apart, yes, but that certainly doesn't account for the difference.
I can't find a decent comparison per journey or per driver.

Any statisticians out there want to volunteer an analysis of whether this is meaningful, or simply a big number I've added to a blog post to make a point?

Snow!

2010-01-11T03:13:00.000-08:00

Yes, I'm belatedly excited about the snow. Custody vans not going anywhere, videolinks becoming very necessary, courts closing because there's no heating in the cells, the whole country does indeed grind to a halt whenever we get snow. But at least it's proper snow this time. There was even a snowman outside one police station. I wish I could say it was still there.

Starter for ten: is it criminal damage to destroy a snowman?

This particular snowman was built by another person, on public land, with snow that fell on public land. The snowman does not constitute a nuisance or danger, as the considerate builder has located it out of the way of what little passing traffic there is. We can assume the planner inspectors won't be troubling Frosty either.

Answers on a postcard, in the DX, or in the comments section. I'd love to say there'd be a prize, but I just don't care that much.

Happy New Year

2010-01-01T03:19:00.001-08:00

My apologies for the sporadic posting, the festive season being what it is, the chances of a coherent post being published between the 24th December and today are slim, to say the least.

Still, now we've finished celebrating the incarnation of Santa Claus, and have performed the modern equivalent of ritual self-flagellation; queuing for the sales, we can look forward to 2010.

What will 2010 hold for the CPS, the criminal justice system, and indeed, more widely?

Firstly, less money for criminal lawyers, obviously. The CPS has already started gearing up for redundancies -- the compensation scheme has been changed, and it's now cheaper to fire people. Voluntary redundancies offered already, compulsory ones aren't far behind. Further legal aid cuts seem likely as the government tries to stem the flow of money.

A Tory government handing charging back to the police -- discontinuance rates will soar to start with, and then settle down.

A new government will take a dim view of recruiting highly-paid higher court advocates with massive pension liabilities in such dire times. Cutbacks ahoy!

Those who cause death with a single punch, or with a single incidence of careless driving will get longer sentences.

The Tories will have to ditch their ridiculous promise to ditch the Human Rights Act.

More generally... foreign wars over silly finite energy sources to continue, the Higgs boson discovered and supersymmetry proven, medical science will continue to advance apace, Google will move ever closer to world domination, speculation in the biscuit market will cause a shortage of those ridiculously tasty caramel digestives, the ban on hunting with hounds will be repealed, televised political debate will fail to generate interest, and fewer people will vote in the General Election than voted in the X-Factor final.

Happy New Year to you all, may 2010 find you in rude health, free from oppression, famine, disease, injustice and suffering.

Asylum seekers

2009-12-23T15:29:00.000-08:00

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.

Where to begin?

2009-12-21T10:27:00.000-08:00

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.

An Englishman's home is his castle

2009-12-15T09:59:00.000-08:00

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:

THESE MEN DESERVE MEDALS NOT JAIL. LET ME KNOW IF THERE IS AN APPEAL FUND FOR THEM & A HANGING FUND FOR THE OTHERS.

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.

Presumption of innocence

2009-12-09T11:16:00.000-08:00

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.

Answer Time Part Two

2009-12-08T10:35:00.000-08:00

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.

Hi,

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.

Regards

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?

Cheers

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.

Answer Time Part One

2009-12-07T10:43:00.001-08:00

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.

EDITED TO ADD ONE LAST QUESTION:

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.

ALSO!

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.

Question Time

2009-12-03T01:38:00.000-08:00

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.

Open prisons

2009-11-24T15:55:00.000-08:00

I dealt with someone in court last week for two assaults on police officers, and a section five Public Order Act matter. He was drunk, shouting and swearing at the police officers who turned up to deal with him. They were trying to do so sensibly, i.e. they didn't arrest him, and told him to go home. He was so abusive he was eventually arrested. He got to custody and "kicked off", and was rather forcibly restrained for his trouble.

He was charged with one assault PC for kicking an officer, and I added the second for spitting in the same officer's face. He was adamant he was not guilty, despite the custody CCTV being at court, for once.

The usually friendly probation officer came over, rather puzzled.

"The computer says he's on licence"

After that little incident, they're hot on that sort of thing. Being on licence is when you are released to serve a portion of your custodial sentence in the community. If you re-offend, probation should recall you to prison to finish your sentence inside, but they might not get round to it until you've murdered two French people.

"Oh, thanks for letting me know, I wasn't even given his pre-cons. What's he on licence for then?"

"It's for 360 months, so it must be murder".

Ah.

Now, the police had arrested this man, fingerprinted him, and then bailed him to court. Goodness only knows why. Not their finest hour. He had been in and out of the dock all morning while I tried to figure out why he had been bailed by police, why he hadn't been recalled by probation, and where his bloody solicitor was.

The police liaison officer at court saved the day by finding an up-to-date set of previous convictions. It turned out that he wasn't on licence for murder at all. It was a life licence though, but just for an armed robbery. He still wasn't represented, and shuffled back into the dock. I rose.

"Sir, I now have the information I require, and this matter can be dealt with. While I'm addressing you and your colleagues, might the gaolers be called in?". They were. I asked for him to be remanded in custody pending his trial. He was. It wasn't a challenging application.

He was well-dressed, in blazer and overcoat, clean, smart, well-spoken, and polite to a fault throughout the proceedings. Think Reggie and Ronnie Kray. A gangster of the old-school. Respectful of authority, in his own bizarre, armed-robbing, drug-dealing way.

He thanked the bench when they told him to go downstairs, even knowing that he wouldn't be let out for a good few years. I had to remind myself that there was a damned good reason he got life, but I couldn't help thinking, "He won't be any trouble at all inside".

And I was right. He'd been saving himself for when they started day-releasing him. His first day out was when he attacked the police officers, his second was when he answered his bail at court. He told the prison he had a job interview.

Anyway, all that is why I was entirely unsurprised when this happened.

Although, if the open prisons were all like this...

... people might want to stay there. Is it just me, or is that actually a stately home, and not East Park Prison?

Rape, continued.

2009-11-24T15:12:00.000-08:00

In the comments on my previous post on rape, and more particularly on anonymity, a small debate began about the frequency of false allegations. A video was brought to my attention, about rape statistics. I watched this video.

The web page hosting the video is entitled "Understanding the Rape Statistics". The first words to appear are "Understanding Feminist Rape Statistics". Ah. Alarm bells began to ring. The person who uploaded it to YouTube is apparently known as Angry Harry. Angry Harry has such friends as FeministsAreScum. Actually, in fairness, that person's account has now been closed.

Unfortunately, it only gets worse from there. The protagonist of the video asserts that women are offered "so many incentives for making false allegations", giving the following examples:

Vindictiveness, revenge, jealousy, blackmail, seeking legal advantage, seeking compensation money, seeking sympathy, seeking to justify poor behaviour, supporting the Sisterhood, seeking a job, badge of honour.

I promise I haven't made that up, it's at 4:08 in the video. Some of those are undeniably factors in false allegations, numbers 1, 2, 3, and 5 immediately springing to mind, but "badge of honour"? Really?

I solemnly promise that you, faithful readers, will be the first to know if the CPS start giving out badges saying "I made an allegation of rape and all I got was this lousy badge". It'd be a big badge.

To widen the audience appeal, the video then attacks women more generally. Apparently, "5% of women have personality problems when dealing with relationships". Another list then appears on screen:

Personality Disorder
Imbued with PMS
Alcohol, Drugs, etc.
Emotionally volatile

Again, entirely unaltered.

"17% admit serious emotional problems with PMS every month". The urge to make a sexist joke is almost overwhelming, my self-destructive character being what it is, so I'll move on before I commit any Thought-Crimes.

The conspiracy theory, and this being the internet, such a thing is pretty much compulsory, is that the "multi multi billion dollar abuse industry" is behind it all.

An apparently random firm of solicitors was picked out and vilified for saying that you can claim compensation for an attack, even if you were dating / married to your attacker at the time.

Of course, that's quite right. No-win-no-fee work claiming compensation for victims of child abuse may be criticised in some quarters, but the firm in question explain why their work is important on their website. I hope the free plug makes up for being singled out.

The video concludes that 90% of allegations are false, and that 1000s of men are falsely accused every year (accompanied by a logo for the Duke University Lacrosse Team -- can any Americans shed light on that for an ignorant Limey?).

It is, in short, a chauvanistic rant about evil women getting together and lying about being raped to get at men. And, to top it off, Angry Harry has created a video so hideous that it should have broken the internet. The link is not safe for work, for post-breakfast viewing, for those of a nervous disposition, unmarried ladies under the age of thirty, or quite possibly full-stop.

It starts with the letter F (presumably for "Feminist") being arranged into a swastika, followed by lots of photos of Harriet Harman's head being grafted onto unthinkable, unspeakable things. Hilarious, in its rather perverted way.

The mind boggles.

Charging advice

2009-11-23T14:28:00.000-08:00

The benefits of co-location, i.e. the CPS being in the police stations, are felt far more keenly by the officers than by us. They get to bring us inane questions for which they never would previously have bothered to get an appointment ("But how do I charge him, I don't know how, do I need to arrest him?"), and we get our days interrupted, and don't get as much work done.

Today, I was asked to deal with a breach of a non-molestation order. I was in the middle of some very important browsing of the internet, but the officer was loath to call CPSD.

I looked at the file. Easy-peasy. She says he's been round her house, County Court's already told him not to go round, he's got previous for doing it, no reason to disbelieve her, he knows he's not supposed to be there, and has coughed it in custody, charged in 10 minutes flat. Back to the internet, and he can go to court.

So, CPSD. CPS Direct are the little-known call centre of the CPS. The police phone them for charging advice when us normal CPS lot aren't in the office, which means they work from about 4.30 pm - 9.30 am. Actually, they also answer the phone when we can't / won't give charging advice. So they're pretty much round the clock on shifts, working from home.

The CPS sticks a phone line and fax in the lawyers' living rooms, gives them a headset and a 25% payrise, and they give out charging advice from home, over the telephone. They are, in all likelihood, sitting in their dressing gowns, a Marlboro Light sticking out the corner of their mouths, with a pot of tea on the go, and late night Radio 2 in the background.

They are a mixed bag, as are any group of lawyers. Some are excellent lawyers, which is immediately apparent when reading their advice. Some are clearly sick of the phone going at four a.m., have run out of fags, and are wishing they were still asleep. This is also obvious when we read their advice.

There isn't really a moral to that tale, I'm afraid. Just more civil servants doing a relatively difficult job, for next to no recognition. Any CPSD lawyers out there want to chip in? Anonymously, of course...

Communication Breakdown

2009-11-10T23:55:00.000-08:00

So, with a tip of the hat to Led Zeppelin, this is how I found out that my job is going to be changing in a pretty substantial way. Thanks, boss.

I also note that the Times doesn't seem to be quite up to speed on the fact that prosecutors are already back in police stations.

The police are getting summary-only charging back. This is a cost cutting exercise, naturally. It will also solve some CPS staffing problems -- fewer charging decisions needed. It's also a handy testing ground for police charging. I've said it before, and I'll say it again -- we are heading right back to 1985, pre-CPS. Lawyers in police stations, police doing the charging for everything, closer working relationships, etc. We already have a shared logo, for the "Prosecution Team". It's the police chequered squares above the scales of justice on a shield (sorry, can't find it online). I wish I was joking.

What proportion of the offences in my list for today's court are in fact summary-only? I don't know, because I haven't read them yet, but I'll report back. About 20%, I would guess.

Sonnex and Farmer

2009-11-08T01:00:00.001-08:00

These two blokes were freed because of endemic cock-ups. Sonnex was supposed to be in prison. Probation didn't recall him to prison. He'd been arrested and charged for other matters, and the fax from probation to the cells wasn't sent. The document that deals with recall on licence is a single side of A4, signed on behalf of the Home Secretary, informing the person named that they are being recalled to prison for "unacceptable behaviour" whilst out on licence.

Sonnex got technical bail on the new offences, because the court was told he'd been recalled on licence. He went back down to the cells, who declined to detain him because the certificate of recall had not come through (and quite rightly so). He was released.

By the time the Met got around to conducting arrest enquiries, two weeks later, they arrived at Sonnex's address a few hours after the murders. Sonnex, I am given to understand, is a well-known local villain, and has a certain pedigree in the courts.

Discussing this horrendous affair with a French judge shortly after the news broke, I said that if I were advising the families, I'd be advising them to issue civil proceedings.

Lo, and behold, proceedings have been issued, seeking compensation from the probation service and the police.

I shall make myself perfectly clear -- I feel a large amount of sympathy for the individuals in the probation service concerned. Those in the probation service are horrendously overworked, understaffed and underfunded. The Met is also stretched. The issue of where the blame lies is extremely complex, and may have to be thrashed out in the courts. Actually, I'd put money on a settlement to avoid embarrassment.

In the comments of the Times Online article linked above, there is the following comment:

Symon Allen wrote:

If you have overcrowded prisons then screw the EU policy on the death penalty and start culling the murderes/rapists/paedophiles/insane. We don't want them back in society and we don't want to pay for their upkeep with our taxes. Get rid of them NOW. [Sic]

Symon Allen, you are a very dangerous person, and your views are repellent. I appreciate that the internet tends to provide a home to the fringes of society, but suggesting that we "cull" people with mental illnesses to make space is beyond the pale. I am lost for words.

Anonymity

2009-11-02T23:49:00.000-08:00

A subject dear to my own heart, of course. Rape victims are anonymous as of right; that is, I don't have to ask the judge nicely if he would order those journalists in the back row not to publish her face on the front page.

N.B. -- "anonymity" is NOT anonymity in court. The complainant's name is used in open court, and unless special measures are granted (which are as of right in sex cases, and usually involve giving evidence via a live video-link), you still have to face your alleged attacker.

I say "alleged" because in a very large proportion of cases, the men (and it is always men who commit rapes -- a person, A, commits an offence by penetrating with his penis the vagina, anus, or mouth of another, who does not consent, and who A does not reasonably believe to consent -- s.1 Sexual Offences Act 2003) are acquitted. This will often boil down to the jury being unable to be satisfied so that they are sure.

I wasn't always part of the jackboot of the state, and I have seen first-hand how an enitrely unfounded allegation of sexual assault can destroy one man's prospects. This particular man had a very bright future, and his face was plastered all over the papers as a sex attacker. Having seen the evidence, and heard a large amount about the character and credibility of the complainant, it was obvious that the allegation was malicious.

He was rapidly acquitted, but no more reporting than "Man acquitted" could take place -- the complainant's anonymity is still protected to this day, which is also why I can't give any real details.

Should both sides be anonymous?

I think so. Women Against Rape don't, citing the "fact" that "most rapists are serial rapists" and the publicity is needed to get women to come forward. That's clearly cobblers. Firstly, the majority of cases don't involve any suggestion of serial rapes of different people.

Secondly, we don't advertise the identity of alleged muggers, so why would we do it with alleged rapists? What do they want, a forty-foot billboard with the slogan "Have you been raped by this man?"?

In the very few cases where that would help, you can still do that, but for the love of all that's good, DO IT AFTER HE'S BEEN CONVICTED! Bloody hell. Innocent until proven guilty? I know the Government's been working on habeas corpus and jury trials, but even they haven't dared touch that one.

There is a balance to be struck, and the unique stigma attached to rape means that those accused of rape and subsequently acquitted continue to suffer the consequences.

And Women Against Rape, an organisation that professes to seek justice, should remind itself of the basic rules -- innocent until proven guilty.

Nutt sacked

2009-11-02T23:25:00.000-08:00

I'm sure the good doctor would agree that his career in government advising was not ended in vain, giving subs across the land a veritable pun-fest.

To be clear, our government has asked for some scientific advice, based on evidence, got an answer it didn't like, ignored it, and then sacked the bloke for repeating the evidence.

It is important that the Government's messages on drugs are clear and as an advisor you do nothing to undermine public understanding of them.

This phrase from the letter of dismissal, reproduced in full in the link above, is not impressive. The "advisors advise, ministers decide" division has existed since well before Sir Humphrey. The reality is that Prof. Nutt has been illuminating the understanding of the general public as to the Government's policy. There should not be anyone left under the misapprehension that the Government's position on drugs is a logical one based on scientific evidence.

By the way, cannabis is now pretty much legal in 13 states in the USA, including California (desperate for taxation income, obviously), with a further dozen or so to vote on the issue in the coming year.

And finally, just a little something to stick in the throats of all those suffering the effects of public sector spending cuts -- whether that's as a professional or as a "customer"; £161m down the swanny. I dread to think how many tins of biscuits and bags of tea that could have bought. Would have lasted me weeks.

Double bubble

2009-10-20T01:41:00.001-07:00

Excuse the back-to-back posts, this caught my eye.

It is reported that as the prisons creak their way along, a couple of governors were pulling the old switcheroo to try and hoodwink the inspector into thinking that actually, the prisons were doing fine. The thinking seems to have been, "shuffle the problem lags off to a different prison, and bring 'em back when the nosy parkers have gone".

Full story here.

Cuisine of the Crown Court

2009-10-20T01:07:00.000-07:00

The most hilarious misapprehension about those of us who have the good fortune to spend our time in the Crown Court is the amount of money we make. An oft-repeated anecdote:

Whilst dining at the house of a friend, I was told that a well-known television actor would be joining us for a drink or six. He swept onto the drive in a gorgeous Jaguar, obligatory blonde bit of fluff tagging along. We engaged in the usual polite chit-chat until I could ask him whether he'd really shagged that Blue Peter presenter, and he asked what I did for a living. I said I was a barrister, and his eyes grew wide.

"Cor, you must be minted then"
"Er, no, not really, no"
"Well, I bet you have a driver to take you to court at least"
"Sorry, what?"
"A driver, you know, a chauffeur"

Ha. Matey was making goodness only knows how much, and had enough left after his cocaine and women had been paid for to drive big fast cars. The car parks of the Inns of Court are stuffed with Astons and Porsches, true. But they belong to the commercial boys and girls, the real big-shots at the top of the profession, who can command £5,000 for an hour in conference.

Us hacks, we're on the peasant-wagons with the rest of you plebs.

It is common to operate at a loss in your early years of practice -- everyone dreads the clerk saying "Mention in Milton Keynes tomorrow, sir". That's £46.50 for a short hearing to adjourn a case, and it's a £30 train ride. If you buy a paper and sandwich, there ain't much left to pay the bills.

This misapprehension goes hand-in-hand with "lawyers' lunches". We usually eat sandwiches, maybe an M&S salad for a treat. Lunch is usually a frantic hour, editing transcripts of interviews and re-photocopying jury bundles, chatting with other counsel, badgering each other to get our clients to plead guilty because it's Friday and the wife wants to get away for the weekend.

So, the Cuisine of the Crown Court. When a big cheque's just come in (£150), a "proper" lunch is called for. What of the grub in the courts then? I should start a Michelin-style guide.

Kingston does a particularly nice English breakfast, Winchester has great bacon sandwiches, Exeter has a lovely restaurant right next door, Liverpool isn't up to much, but is smack in the middle of the centre of town, so it's not a problem. Maidstone is grotty as hell. Woolwich is in the middle of nowhere next to Belmarsh prison, the food is terrible. Any other suggestions?

Lawyers, please add the most hilarious misconception you've come across from members of the public. Bonus points for crackpot conspiracy theories from racists.

Twelve men good and true

2009-10-16T10:10:00.000-07:00

The jury system is amazing. It is the safest and surest protection against the tyranny of the state. No man can be deprived of his liberty without his peers condemning him. It is a guard against arbitrary detention. Of course, with a huge array of laws chipping away at our fundamental liberties, my pontificating is pretty out of date. Still, juries are crucial.

In other countries, jurors decide upon the sentence as well as guilt. The risk is obvious. In England, professional judges are required to assess dispassionately the gravity of the offending, with reference to guidelines. The Court of Appeal is perfectly happy to stick its oar in when things aren't as they should be -- "manifestly excessive" or "unduly lenient", as the case may be.

In the good ol' US of A, those who bear the awesome responsibility of deciding whether to end another human's life are the jurors. I am, as I have said before, vehemently opposed to the death penalty. I am also vehemently opposed to the courts being used as a moral tribunal.

So, when I put my feet up in the smoking room after a particularly heavy luncheon of roast haunch of wild boar, to peruse the papers over a snifter of brandy, I nearly had to throw something at the staff. This sort of thing is simply not on.

Citing out-of-context, cherry-picked verses from ancient religious texts is not the way to decide whether one man's crime is of such a gravity that it should be punished by death. I am glad that I live in a country where those who sentence take an oath to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.

A theocracy is the most hateful form of government, for it affords no liberty of conscience, which is among the most intimate and sacred of man's rights.

By the way, lunch was a sandwich made by my own fair hands, an apple, and a Twirl. And I wolfed it down in about 3 minutes flat. Your tax pennies hard at work. That lunch is a genuine one, however, eaten within the last couple of years, and is fondly remembered and dearly missed.

Booze

2009-10-15T12:23:00.000-07:00

Alcohol forms a substantial part of the lives of many of the people that traipse in and out of the local court. The scene is the same up and down the country, I'm sure. I'm also sure you can all picture a stereotypical Friday night -- a few in the pub, on to a noisy bar, maybe a club, a good groping of some semi-conscious partner on the dancefloor, stumble out for some unspeakable meat product snack masquerading as a kebab, then queue for a taxi. That's where someone "looks at yer bird" and you feel obliged to start swinging.

The government comes up with strategies to reduce alcohol-linked offending on a regular basis. These are typically poorly thought out, and merely displace the problem drinking or problem drinkers. However, this isn't a blog about Labour's pathetic attempts to generate quick fixes and the resultant confetti of legislation they have poured forth.

So why do people behave like that when they're drunk? Because alcohol is a disinhibitor? Because alcohol makes people horny and violent?

No, and a thousand times no. People behave as if they are affected in that way, as they expect to be effected in that way. The effects of alcohol are due, in large part, to the cultural expectations of the effects of ethanol.

When I first heard this, I thought it was cobblers, to be fair. But the evidence is there. Double-blind, placebo controlled trials. I make no apologies for quoting at length from the excellent "Watching the English", by Kate Fox:

"Football hooligans, road rage, lager louts, neighbours-from-hell, drunken brawling, delinquency, disorder and downright impudence. These infelicities are invariably attributed either to a vague, idiopathic 'decline in moral standards' or to the effects of alcohol, or both. Neither of these explanations will do. Even the most cursory scan of English social history confirms that our current bouts of obnoxious drunken disorder are nothing new and, even leaving aside the placebo experiments, it is clear that many other nations manage to consume much larger quantities of alcohol than us without becoming rude, violent and generally disgusting.

[...]Everyone is always highly surprised [...] and politely determined to let nothing shake their faith in the evil powers of the demon drink. [...] according to the concerned believers at conferences on 'Alcohol and Public Disorder', alcohol makes other people do this. They themselves are somehow immune: they can get quite squiffy at the office Christmas party [...] or whatever, without ever throwing a single punch, or even using bad language. Alcohol, it seems, has the specific power to make working-class people violent and abusive. Which if you think about it, is truly miraculous [...]"

That last part, at least, I can vouch for. Beyond drink-drive, the rich don't really go in for alcohol-fuelled crime. The benefits class are firm believers, however.

I find this overwhelming. The entirety of the government's policies are based on the idea that alcohol makes people commit crime. That isn't the case.

Instead of the quick fixes, the government should be working on changing attitudes to alcohol, which is changing society itself. And that is expensive and slow. And won't grab headlines.

So guess what's going to happen?

All in a day's work

2009-10-14T11:08:00.000-07:00

These are three people chosen at random from a busy day in court one. I hope this gives you some idea of what goes on in a courtroom on any given day.

The first one comes in with the Serco officers (can't call them "gaolers" these days). She's black, middle-aged, heavy-set, with braided hair. She peers through the thick glass, looking for her solicitor, who gives her a reassuring smile, before turning to face the bench. They both look presentable. She came from Ghana 12 years ago, on a boat. She is an illegal immigrant. She claimed to have borrowed a Belgian passport with a valid visa to get here.

She is totally illiterate. When she first arrived, she got hold of a fake NI card. It isn't that tough. She used it to get work cleaning. She's worked minimum wage cleaning jobs ever since, living in precarious housing -- friends' sofas, that type of thing. She has no bank account, and no income now she's been taken into custody.

She's been charged with fraud. She pleads guilty, and gets a £200 fine, or one day in custody, which she's served, of course. Immigration will deport her shortly, and her twelve year adventure in England is at an end. As she leaves with the gaolers (sorry), I wonder what will become of her when she gets home. I say "home", but I have no idea what awaits her -- she left Ghana because she had no family or friends whatsoever, and wanted a better life.

Number two is also with the gaolers (my own little rebellion). He is white, thin, and plainly an addict. A glance at his record confirms that -- knocking on for a hundred offences, and most conceivable drug treatment orders have been attempted. He had cocaine and opiates in his system when he was arrested. There was an administrative error in processing his benefits -- so he hadn't had any for four and a half weeks.

He's charged with attempted burglary. It's all on CCTV and he'd admitted trying to get in when he was interviewed. He'd seen some crisps in the shop window, and was hungry, which was why he'd tried to smash the door in. He was supposed to get a letter for a hospital appointment as part of his previous sentence. It never arrived. He got 28 days inside.

The third isn't in custody. He has a large tattoo on his face, further detail about which would identify him. He was seen brandishing a hatchet, stripped to the waist and covered in blood. He's charged with a public order offence. He said in interview that people attacked him, but he didn't see them, because they're "sneaky fuckers".

He then told probation he'd had eight cans, and that the alcohol "interfered with his epilepsy". The psychiatric team have given him the all clear. He attempted suicide two weeks ago. He has previously been an in-patient. He's stopped drinking, and wants to train as a tattoo artist.

The guidelines say three months, he gets 12 weeks suspended for a year.

All in a day's work.

On a wing and a prayer

2009-10-07T23:08:00.000-07:00

An American couple decided that prayer would save their daughter, and declined to seek medical attention. Turns out that prayer didn't save her. They called the emergency services only when she stopped breathing.

They will now be spending one month a year each in jail, for the next six years, one parent in March, one parent in September. There are some inventive sentences available over the pond, it seems.

She had undiagnosed diabetes. Modern science has dealt with the vast majority of what has been killing us for centuries; malaria, polio, mumps, measles, rubella, diarrhoea and dysentery. Many people, especially those of us with access to modern science (which includes all my readers, obviously), live to a ripe old age and die of general wearing out and falling apart. This young child has been robbed of the rest of her life by her parents' wilful ignorance of the marvels of medical science.

Words fail me. May she rest in peace, and may the remaining children always be properly cared for.

Guardian article

Immunity

2009-10-07T22:54:00.000-07:00

Berlusconi, the lovable rogue of Italy*, whose policy of appointing cabinet ministers based on their figures, and other various shenanigans appear to delight red-blooded Italian men, thought he had the perfect scam. He'd get rid of all these pesky prosecutions by getting himself elected, then pass a law declaring himself immune from prosecution. It worked.

He got the votes, and got his law through parliament just as the husband of our very own Tessa Jowell, the Olympics Minister (no, seriously, it is a genuine ministry), David Mills, was convicted of taking a bribe for testifying in Berlusconi's favour in the 90's. Mills got 4 and a half years, and is appealing.

Berlusconi got nothing at all, of course, and went on to sleep with numerous women less than half his age, some of whom were barely 18, none of whom were his wife, some of whom were paid escorts, some of whom cavorted on a bed apparently used by Putin on a state visit, and one of whom was wearing a wire. He also ran the country, occasionally. He denies paying for sex, but seems to revel in the affirmation of his masculinity.

I still haven't worked out why the papers reported the Putin-bed as such an important detail, though.

However, the constitutional court has gone and thrown a spanner in the works, insisting that all citizens are equal before the law, and Berlusconi is no exception, despite the protestations of his legal team. Let's see what his next move is. My money's on him modifying the constitution itself.

*N.B. Tongue may be firmly in cheek.

BAE Systems Take Two

2009-10-01T23:53:00.000-07:00

The last Attorney-General, Lord Goldsmith, dropped the bribery prosecution against BAE Systems, the world's second largest weapons manufacturer. The reasoning was that it would be damaging to national security to proceed -- which, when translated, means that we'd upset the Saudis, the deal would be off, and we'd stop getting the cooperation / intelligence we so desperately needed from the Saudis. The (alleged) slush funds for Saudi princes were never to see the light of day.

The Serious Fraud Office has just asked the Attorney-General's office to prosecute BAE for various bribery offences related to arms deals in Tanzania and other parts of Africa. Leaving aside the moral aspect of the arms trade (or amoral, depending on your view), why on earth do BAE think they can get away with bribery? Or are they just idiots of the first water for not covering their tracks sufficiently?

For the patronising "that's just how they do business over there" apologists, the question is "why on earth do BAE keep getting caught? If everyone's doing it, and they're not getting caught, are BAE just incompetent?"

Famous fugitive finally found!

2009-09-28T10:57:00.000-07:00

My apologies for the desperately poor alliteration, it must be the beer. Roman Polanski has been arrested in Switzerland. All we've had thus far is uproar from supporters and well-wishers, including some famous people and some politicians, such as France's Interior Minister Bernard Kouchner.

Have I missed something? He pleaded guilty to underage sex (with a 13-year-old girl), was remanded on bail for a sentencing hearing, and decided he'd rather do an extended Grand Tour of Europe than an extended custodial stretch, if it's all the same to you, Your Honour.

The intervening period, and alleged about face on a plea bargain may well give rise to some good article 6 points, especially in light of American "fugitive provisions" about appeals, but why on earth wasn't he arrested before? His location has never been a secret, so why now? Have the Americans really being trying their utmost to nick him for 30+ years, only to be foiled on every occasion by some dastardly cunning?

Jobsworth?

2009-09-18T01:45:00.000-07:00

"On September 25, 2007, at about 4.45pm, Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, received a telephone call from a member of the court’s staff.

He told her that lawyers acting for Michael Richard, a prisoner facing execution that evening, were asking if the court could stay open to accept a petition to stay the sentence. Judge Keller replied: “We close at five.” Richard was executed at 8.20pm. The extraordinary judicial misconduct proceedings heard against Keller last month should result in her dismissal from office."

Full story here.

I was truly lost for words when I saw this, hence the rapid succession of posts. For the record, I am very much opposed to the death penalty. This isn't the place to rehash the debate, but I'm sure that even those in favour of the death penalty can see the problem with the system when this sort of person is allowed to participate.

"Judge Keller gave evidence at the disciplinary hearing that she had left work early to meet a repairman at her home. She explained that the request for the court to stay open late did not fall within the rules: “I think it’s a close call, but I think that’s right,” she said of her decision. “I was doing exactly what I was supposed to do.” She confirmed that she would not act differently if faced with the same circumstances again."

This is the worst sort of administrative legalism, and when the State is imposing the ultimate penalty, should be avoided at all costs.

"The Attorney-General and Harriet Harman in illegal immigrant tax break stripper shocker!"

2009-09-18T01:29:00.001-07:00

Or so ran the headline in my caffeine-deprived brain this morning.

It has been remarkably quiet of late, and having learnt from an early age that it is better to remain silent and be thought a fool, than to open one's mouth and remove all doubt, I have held my tongue.

But those two stories were too good to pass up. The AG hiring illegal immigrants to clean her house? Couldn't make it up. Then, I see that Harman has business men in her sights for claiming back taxes on visits to strip clubs.

So, the AG -- negligent employer, or honest mistake? Can we expect to see the Met kicking down her front door?

As for Harman, does she really think that the bankers' worst crime and biggest failing of the last few years is sticking a bill from Stringfellows on their expenses and tax returns?

Or could it just be a dismally ineffective attempt to be seen to be doing something? Perish the thought.

For what it's worth, I have an extremely low opinion of those who feel that their clients' intelligence is such that paying a young girl to undress in front of them will make them forget the merits of the deal, and sign on the dotted line. I just don't get it. Perhaps I should conduct some research into this area. Harman's department must have some cash set aside for this sort of thing...

Full text of the DCMS letter now online

2009-08-26T11:55:00.001-07:00

And for those who are interested in such things, please go to the excellent wikileaks website, which can be found here.

Video nasties and a government cover-up!

2009-08-25T14:31:00.000-07:00

In our peculiarly English way, we have attempted to suppress sex shops by creating a system of regulation that makes them instantly identifiable; the grey shop front with lurid letters "SEX SHOP", and the unspeakable things lurking within.

If that little paragraph doesn't boost my Google ranking, I don't know what will. And if you're looking for titillation, so to speak, I suggest you look elsewhere...here lies only a discussion about technical regulations.

The EEC Technical Standards Directive (83/189/EEC) requires that technical regulations are "notified", i.e. that a formal letter is sent by the member state to the EU. Simple.

The Video Recordings Act 1984 regulated the sale of age-rated videos and restricted certain material to certain establishments, usually ones with no windows and grey shopfronts. That perfect tense conjugation will be important in just a minute.

The Video Recordings (Labelling) Regulations 1985 were the regulations that the Tory government of the day failed to notify. Astonishingly, no-one has noticed in the intervening 25-odd years. Until now. No notification, no enforcement, says the European Court of Justice.

So all offences under the Act and Regulations are "non-enforceable". The Parliamentary Under Secretary in charge of the Department for Culture, Media and Sport (DCMS), the Rt Hon Barbara Follett, yesterday wrote to Keir Starmer QC, the DPP.

She pointed out that the current EU regulation, the Technical Standards Directive 98/34/EC (thrilling, isn't it?), requires a 3 month pause when new regulations are notified. The upshot of which is that for the next three months, it's open season on uncertified porn, and no age restrictions; so fill your boots, and be sure to sell it to kids.

"In relation to past prosecutions, it is our understanding that there would be no positive obligation on the Government to re-open these; however we would welcome any comments you may have in this regard."

No obligation other than fair play, that is. Those who have been imprisoned for contravening non-existent laws may feel hard done by. Those who were fined could at least be reimbursed.

The BBC news website was covering the issue at length, as were all the usual outlets in their varying trademark tones. Despite this, the Rt Hon Ms Follett mentioned the unavoidable gap in "enforceability", and said:

"I am particularly concerned that advantage may be taken of this lacuna to flood the market with unclassified DVDs. I therefore ask you to consider carefully what reasons are given to the court in relation to any discontinuations."

Now, just a minute. This is a Parlimentary Under Secretary, asking the DPP, albeit in a roundabout way, to conceal the true reason for discontinuing proceedings. This would be misleading the court, and, to put it mildly, is an absolute disgrace. From an MP, it is beyond belief.

I am not sure which concerns me more; the attempt to cover-up the cock-up, or the fact that the DCMS thought that it was O.K. to lean on the CPS to get us to mislead the court.

There's more in the very carefully worded letter, in relation to other un-notified regulations. I've edited any references to that out, because I don't want to take the piss. I have uploaded some chunks of letter for you, though...

Part One
Part Two
Part Three
Part Four

Enjoy.

I apologise for the cumbersome images, I was not able to edit the PDF of the letter.

I'd be astonished if some enterprising red-top didn't get the full text online shortly. If they do, I'll link it in, but for now, I'm keeping my head ever-so-slightly below the parapet. I hope you understand.

Going gently into the good night...

2009-08-24T10:56:00.000-07:00

Embarrassingly, it seems that my technical ability doesn't even extend to preventing my humble thoughts from going gently into the good night. It seems that the website I use decided to remove my blog from public view for no apparent reason. I apologise sincerely for any confusion.

So, this Libyan fella then... Those who read Private Eye will be familiar with the evidence that led to his conviction. Basically, when the airliner was blown out of the sky over Lockerbie, the debris was scattered widely. Months after the accident a fragment of timer was found in a wood, with an item of clothing attached. The label showed Malta as the country of origin, and a Maltese shopkeeper identified the defendant as the person who bought the clothing, which the prosecution said, was wrapped around the bomb. This man now lives in a rather large villa in Australia, which some say, almost inevitably, was paid for by the US government.

The chap couldn't be released with an appeal pending, so that was withdrawn. The prisoner exchange programme was ruled out, and that left compassionate release.

We're told he only has 3 months to live. So let's see if he does a Ronnie and recovers upon release, or whether he passes away. In any event, the old bloke who got off the plane in Libya might not have looked like it, but he is this month's political football.

270 dead, worst terrorist attack ever. Evidence not great, but convicted under scotch-ish law (that may not be the proper legal term), served a good stretch, apparently only got a matter of weeks left. Clearly, dying with your loved ones is preferable to dying in a foreign jail (some would say, don't commit crimes abroad then).

Would you have released him? Would you release everyone who was dying? If yes to the first and no to the second, why?

The Prosecution Team

2009-08-21T00:01:00.000-07:00

That last post about the complainant-prosecutor relationship got me thinking. The police and the CPS have been working together since 1986. The CPS was created to ensure that the lawyers were independent of the police forces they worked with. We moved out of police stations.

In the comments of the last post, "ANON COPPER" said that he or she "always knew the CPS weren't on our side". And he or she is quite right, we are independent. But now, it seems we're heading back towards integration with the police. We're even back in the stations, and being called "The Prosecution Team".

The police, quite frankly, have far more to gain from "co-location" than the CPS. We get small administrative advantages on occasion. That's about it. We have to travel further to work, and work in grottier places than was previously the case.

On the other hand, they have a team of lawyers, 9-5, 5 days a week, and they seem to be under the impression that we are there to answer every little query, and solve every little problem. They don't hesitate to pelt us with questions, queries, requests for "unofficial advice", and the like. Yesterday, I had a police officer come to my desk and ask how to charge someone. Once I'd cleaned the tea off my monitor and the tears had stopped, I told her to go and speak to her sergeant. I could hear his response through several walls.

So we moan at each other, but for the most part, we seem to rub along. I mean, in other jurisdictions, when the lawyers have had enough of the police...

This has also been picked up by the BBC, here. Quite extraordinary.

We are the champions...

2009-08-18T13:09:00.000-07:00

The relationship between prosecutor and prosecution witness is a strange, and occasionally fraught one. Witnesses often see me as "their" lawyer, present in court for the sole purpose of helping them get that nasty neighbour sent down, or whatever it happens to be.

This is rarely the fault of the witness, who may have been told that I am their lawyer, who may have been asked for a Victim Impact Statement, or who may have been given the Victim's Code publication setting out "minimum standards of care" they can expect.

Of course, those who have been the victims of crime need to be taken seriously, and treated with dignity and respect, and I am all in favour of promoting that, but I am not "their" lawyer. I am the prosecutor, and I am there to prosecute on behalf of the state.

It has been said that prosecutors never win or lose cases; we simply present the evidence. It is up to the tribunal to accept or reject that evidence. If I make a good opening speech, ask the right questions, and can get the witness to come up to proof, then I've done my job. If that isn't enough to convince the tribunal, then the case might be crap, the tribunal might be asleep, or the defendant might be lucky, but in any event, the defendant is not guilty.

Anyway, the relationship with witnesses...the Justice Committee summed it up thusly:

"Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed."

I have seen a witness realise that I wasn't their champion -- when I asked for permission to treat them as hostile -- "disappointed" is a polite way of describing the look I got.

Full report here.

Bow Street Magistrates' Court

2009-08-16T06:04:00.000-07:00

John Mortimer QC, one of the best-known members of the Bar, has been the subject of many books, some of which are worth a read. "Clinging To The Wreckage" is particularly worth-while.

I have recently finished one such book, which contains, as do they all, brief accounts of some of his more famous cases, which often involved obscene publications. One matter being discussed was the Lady Birdwood obscenity trial, a private prosecution involving The Council of Love, a play depicting an Easter Day orgy, complete with randy cardinals, a naked Pope, Mary as a whore, Jesus in a wheelchair, and a rather shabbily-attired God. It was a nineteenth century satire, being put on at the Criterion Theatre.

John Mortimer QC (plus juniors) and Quentin Edwards QC (plus juniors), were pitted against each other in a case that was attracting intense media attention, dealing as it did with such grave issues as freedom of speech and censorship. It struck me, upon finishing the story, that this case was being heard in the mags. In fact, many of Mortimer's best cases started and ended in the mags.

The case was thrown out, by the way, during committal proceedings, when Mortimer was able to show that the two defendants were not present at the time, and could not, therefore, be responsible for the content of the play on the night Lady Birdwood was in attendance.

It is apparent from reading books about that particular era, that the magistrates' courts were held in rather higher regard than they are these days. "Old-style" committals to the Crown Court, with the calling of evidence, and cross-examination of witnesses, were standard, and the local benches were well-respected by local villains.

Time passed, and "local villains" became "court users", and politicians seem eager to have cases heard in the crown court, for the "serious stuff", or diverted, for the "not-so-serious stuff".

What future does the magistrates' court have in this climate?

Justice delayed...

2009-08-16T05:31:00.000-07:00

...is justice denied, as any lawyer worth his salt will be able to tell you. Let me know what you think of this all-too-typical scenario, plucked from the mire of cases sloshing about within the OBM.

For those unfamiliar with "the OBM", it's not an oblique reference to a recently elected chap from across the pond, it's the Optimum Business Model -- see further down this page for a full explanation.

This case involved harassment of a partner, phone calls, unwanted visits, etc., etc., so was classed as occurring in a domestic context. Such matters are referred to as "DV" cases, short for "domestic violence", even where physical violence is entirely absent.

Mrs called the police, Mr was arrested, and held by the police overnight, to be produced before a bench. He was remanded in custody on his first appearance the following morning. So far, so utterly typical.

A week later he was bailed. Six days after that, a case management hearing (CMH) was held, and no primary disclosure had taken place -- staffing issues mean there simply aren't enough lawyers to go round the cases. A week later a pre-trial review was held, primary disclosure was served, and the following day his bail conditions were varied. 12 days after that, the first trial listing rolled around.

She turned up, which is relatively unusual in and of itself, and the matter was adjourned, as court time being hard-pressed, and there were further disclosure issues to resolve before beginning the trial.

Six weeks after the first go at a trial, a second pre-trial review was held, and the CPS file didn't turn up. The following day it did, and a date was set for trial. 19 days after the third pre-trial review, the fourth pre-trial review was held. Still with me?

This date was set one week before the trial, to ensure that everything was done. I had the pleasure of opening this file on the eve of pre-trial review number 4, and finding that not one jot or iota of work had been done.

I spent the better part of a day lashing the case into order as best I could, served almost a dozen statements, expert reports in relation to mobile telephones, medical reports and photographs, as well as a bad character application. Of course, I wasn't going to be presenting the case in court, so I drafted a note to try and summarise the four-inch-thick bundle as best I could.

So, if you were defending him, what do you do? Is it fair to try a defendant with so much evidence served only a week before a trial? How impressed is the complainant going to be with the progress of this matter? How impressed is the bench going to be, for that matter? First appearance to second attempt at trial; 102 days, give or take some atrocious mental arithmetic.

I wish this was an isolated case, but the truth is that I am often instructed to apply for an adjournment in order to rectify some abject failure to serve a particular item, usually in the face of weary disbelief from the bench, and in the face of a correspondence file bulging with written requests for said item from the defence.

Unfortunately, "More Lawyers!" has never been a vote-winning slogan, and so we will continue to be cut, rationalised, consolidated, and streamlined until the whole thing collapses about our ears.

Debbie Purdy, Dignitas and the DPP

2009-07-30T14:19:00.000-07:00

WARNING: This post may contain traces of moral issue. These are murky waters for a lawyer, and I cling gratefully to a liferaft of certainty, and the only thing I am qualified to discuss in the whole affair; today's judgment from the House of Lords. I would apologise for the length of this post, but I feel the importance of the issue merits thorough discussion. Plus, I run the show, so I can do what I like.

The House of Lords have just handed down their judgment in the case of Debbie Purdy. My first attempt at typing that last sentence actually included the name "Diane Pretty" in place of "Debbie Purdy".

For those of you who have been living under a rock, Debbie Purdy suffers from a debilitating motor neurone disease that is not currently curable. She says that it will eventually reduce her quality of life to the point where she will commit suicide rather than live on. To do so, she plans to travel to the Dignitas clinic in Switzerland, which provides lethal cocktails of barbituates to people in her position.

For those of us subject to this jurisdiction, assisting suicide is a crime. Many Britons have travelled to Switzerland to end their lives in the Dignitas clinic, and most travel with family members. Of these family members, none has been prosecuted.

The Code for Crown Prosecutors contains two tests, which can be paraphrased thus: Is there sufficient evidence to give a realistic prospect of conviction? Is it in the public interest to prosecute? Of the cases submitted to the CPS by various police forces, we have declined to prosecute on the basis of the evidential test on a number of occasions, but have declined to prosecute on the basis of the public interest test only twice.

Once, in the case of a paralysed but otherwise healthy young man, the DPP made the decision personally, and made his written reasons public. He has, however, refused to issue guidelines in relation to prosecuting this particular offence. This case is the final stage of Debbie Purdy's long-running legal battle to force him to do just that. And she won.

To quote from the judgment (at some length):

"[Debbie Purdy] wants to be able to make an informed decision as to whether or not to ask for her husband’s assistance. She is not willing to expose him to the risk of being prosecuted if he assists her. But the Director has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful. This presents her with a dilemma. If the risk of prosecution is sufficiently low, she can wait until the very last moment before she makes the journey. If the risk is too high she will have to make the journey unaided to end her life before she would otherwise wish to do so".

So, the law lords duly concluded that offence-specific guidelines should be published, as a failure to do so left such a grey area that the uncertainty effectively interfered with Debbie Purdy's right to life, accorded by article 8 of the European Convention of Human Rights. I commend the judgment to you in its entirety, it is worthy reading, not least because Lord Phillips of Worth Matravers took the opportunity to remind people of a judge's role:

"It must be emphasised at the outset that it is no part of our function to change the law [...]. We do not venture into that arena, nor would it be right for us to do so. Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it."

Well said, my Lord, well said.

For those who care, my personal view is that anyone who travels to a foreign country knowing that their loved one holds only a one-way ticket is a brave soul indeed. To be present at the moment of their death is horrendous enough, but to contemplate it for weeks or months before the appointed day arrives, and then to hold to their lips the fatal draught, is beyond my contemplation, and I pray that I never have to make such a journey.

At the risk of opening a king-sized can of worms, I would be curious to know what my readers make of this.

Comments

2009-07-28T23:23:00.001-07:00

I've figured out why so many people were having trouble posting comments. It was all down to technical error 432A; "operator incomptence". It's hopefully fixed now, and people should be able to comment freely and anonymously, should they so desire.

Money, again.

2009-07-28T15:10:00.000-07:00

It appears, reading back over the last few posts, that I've become a little side-tracked by money, and for that I apologise. I certainly wouldn't want anyone to get the idea that lawyers are fixated by the subject. But, I beg your indulgence once more, before I get on my high horse, and move on to advocacy within the CPS.

Best-value tendering. Three words (despite the best efforts of that wretched hyphen) to strike fear into the heart of any lawyer. They should also scare any member of the public concerned about being arrested for some spurious reason, i.e., all of us.

The concept, for those lucky enough to remain outwith the clutches of the criminal justice system, is this: firms will bid in an auction for the right to conduct defence work for people who can't afford a lawyer, and that work will then be dished out in parcels.

Firstly, the idea that the state will pay highly trained lawyers to try to put people in jail, and then pay highly trained lawyers to try to keep those same people out of jail, is a brilliant one. It is a ringing endorsement of democracy, and the continually operating proof that the state is not tyrannical, that justice is not arbitrary, and that justice is for all, regardless of financial means.

It sums up the very British emphasis that our legal system places upon fair play. We even have a legal principle called "equality of arms", which is the legal equivalent of divvying up ammunition before going over the top.

Alas and alack, someone somewhere noticed that we spend rather a lot per capita on legal aid in comparison with our neighbours -- almost £30 per person per annum, compared to about £4 in France. As legal insurance goes, it's pretty good.

What's this auction about then? Why do lawyers need help driving up prices? Shurely shome mishtake? Well, some clever little civil servant has had a brainwave. Dutch auction. Reverse auction. Firm A has a look at its payroll and books, and says "we can handle 100 cases a year for £25,000".

That's a made-up number, by the way, and I apologise to those among you who have recently redecorated their monitors in a shade of Tetley.

Anyway, Firm B then has to say "Well, we'll do 200 cases for £25,000". Or, "We'll do 100 cases for £12,500".

The result is a race to the bottom, in terms of quality and service. So guess who suffers? You. The poor sod who's been arrested and needs some decent advice. This reverse auction was tried with home care for the elderly, and the results were shocking and immediate, with one firm losing its licence to provide home care shortly after winning a contract, so poor was the "care" provided. The winning rate was about £7 an hour. Cooked home meals became sandwiches and crisps bought on the way over to Doris from Gladys, simply because staff were so stretched.

A joint response from the Criminal Bar Association and the General Council of the Bar pointed out that this system is actually "price-competitive tendering", and isn't used anywhere else in the world in relation to legal services, except in the USA. Even the Yanks realised that if the system preserves the quality of representation, it didn't produce the savings sought (Chapter IV of the Department of Justice Special Report, cited in the above link).

What a surprise.

Alice in Wonderland

2009-07-27T23:49:00.000-07:00

Crimeline is a regular email update service, provided free of charge by those responsible for the Crimeline website. It covers important new caselaw and changes in sentencing practice, among other things. The latest email reports that the independent financial consultants, Europe Economics, have had a little look at the CPS justification for using in-house advocates. Their full report can be read here.

The executive summary: CPS haven't put forward the true cost of in-house advocates for comparison.

The thinking goes like this:

Barristers charge fees

We could employ barristers, thus saving the fees

Err, that's it.

Some of my readers may have noticed that the rest of the world is out-sourcing, sub-contracting and otherwise removing employees from their payrolls. Even the typists in the office here are employed by a service company. The cleaners by a different company again. While most companies are doing what they can to rely on short-term contracts with no obligations towards the provider of that service, we're doing the exact opposite.

At the risk of sounding like a stuck record, CPS employees need pensions, sick pay, holiday pay, offices, training, development opportunities, etc. etc. Barristers don't, they get their fee, and that's it. They're on their own for everything else.

The CPS have allowed 10.2% on top of the salaries of the in-house lot to meet fixed costs. Doesn't seem like enough to cover long-term pension liabilities, let alone the running costs for a couple of huge pieces of prime central London commercial real estate.

I suppose we will shortly see just how deep the rabbit hole goes.

As a brief p.s., CPS offices across London are now re-locating to police stations, despite "co-location" being one of the justifications for the creation of the CPS -- we wanted to be seen as having independence from the police. Once the big buildings are "off-budget", we will never be able to have our own offices again, as the purchase would be an enormous outlay, and it would look for all the world like money was being spent, and that just wouldn't do, would it?

Filthy lucre

2009-07-25T03:25:00.000-07:00

This is something of a "hot potato" right now, what with our collective credit being crunched. The CPS is under intense pressure to save money -- millions of pounds across the country -- so that Gordon can save the universe, or something.

Of course, like any government department right now, we are already pretty tightly stretched. Over-spends abound. And yet further savings are demanded. The inconvenient truth is that prosecuting crime needs lawyers to make decisions. Lawyers are relatively highly trained, and need appropriate salaries. CPS salary bands are roughly as follows:

Legal trainee (pupil barrister or trainee solicitor) -- £20k

Crown Prosecutor -- £29k

Senior Crown Prosecutor -- £36k

Crown Advocate -- £50k-£70k

These figures are approximate, of course. Not too shabby, is it? There's a bit extra for being in London, although "London weighting" extends as far south as the London Borough of the Isle of Wight [sic]. There's a bit extra extra for being in Inner London, i.e. London as most people think of it.

And of course, we get gold-plated final salary pensions, flexi-time, generous annual leave, sick pay, holiday pay, child care vouchers, etc., etc., etc., all of which cost money. Lots of money. Especially the pensions.

But it's all O.K., and we're going to make the savings, because we've had an idea -- we're just going to get rid of the lawyers. Yes, it's the great DCW debate! Let's get designated caseworkers in, make them do the lawyers' jobs, but pay them less! Brilliant.

And while we're at it, we'd better not use the independent Bar, because they cost us money, too. The cheek of it! Let's just employ some barristers, and we can save all those nasty fees.

Actually, this links pretty nicely to the next thing I wanted to talk about -- the CPS advocacy strategy, the employed Bar, and designated caseworkers.

The "OBM"

2009-07-23T14:03:00.001-07:00

As promised, I now move to a review of the infamous "OBM", following hot on the heels of my last post -- the anger has carried me through the evening, my faithful companion has long since started dozing on the sofa, all four legs stretched out, looking like a smaller, less stripy version of that ultimate colonial trophy, a large dead-stripy-animal-rug.

The Optimum Business Model, which is so far proving somewhat sub-optimal, is as follows. Rather than having a number of lawyers each being responsible for a number of files, according to specialism (stop giggling at the back), talent (I mean it), working hours (right, stand outside), the CPS has decided, after lengthy and expensive consideration, that the best thing to do, is to not allocate any files at all. So we all toddle off to court three days a week, and on the fourth day, we sit at a desk known as the OBM desk. To one side is a pile of files, all with varying amounts of work required. To the other, an efficient team of crack administrators (who said you could come back in?).

I dump myself into the sagging chair (you need a back complaint to get a decent chair out of this lot) and begin. I may need to respond to a defence letter, I may have to decide whether to proceed with a prosecution when a victim doesn't want to know, I may have to decide whether to apply for a witness summons, I may have to serve primary disclosure, or I may even have to dewarn witnesses because Billy has now remembered that yes, despite his complicated and involved story about Shandeece and Tyrone's big bust up, and why the baby had its ears pierced, and why he ain't done nuffink, he did as a matter of fact punch Johnny and nick his shiny iPod, and would like to have some credit for owning up to it and pleading guilty six months later and three days before the trial, please.

Of course, under what I will call a "traditional" work allocation system, as used in defence firms the length and breadth of the country, I would be at least familiar with a file, and simple queries can be resolved in seconds. Under the OBM, life becomes one endless round of surprises. So I get a letter saying "We represent Fred Splebbins, and note that Jane Splebbins has made a withdrawal statement. Do you intend to proceed with this prosecution? I would be grateful to hear from you by return".

Under the traditional system, I know that I intend full well to continue, because the police saw her injuries, 19 year old Son of Splebbins saw the whole thing, and has had enough of Dad smacking Mum about when he's had a few. Or that I have to throw my hand in because we have no case beyond Mum's bare assertion (and accompanying 10-page list of pre-cons for perverting the course of justice and wasting police time).

So I need to read the file from cover to cover, because I know nothing about it. I need to consider Fred's antecedents, the family circumstances, Jane's views and antecedents, and if I decide we should carry on, I need to know whether we can do without her (considering, of course, recent ECHR and House of Lords jurisprudence on hearsay and victimless prosecutions), or whether I should compel her to attend by way of summons or even warrant.

Which, as you can imagine, adds ever so slightly to my workload. Unsurprised, of course, is the weary defence hack, explaining the basis of an offered plea to the sixth prosecutor to have touched the file.

But what about the coalface? Where intellects collide, or at least bump gently into ignorance, before drifting off into indifference? When I trot up to the local court, have I had the privilege to see any of the briefs I am about to prosecute? Err, no. Sorry, Director. But on the bright side, picking things up at the last minute is excellent practice, and sharpens the mind, or so I'm told.

And the fifth day, of course, is reserved for Crown Court casework, which, for the time being, is allocated properly, and therefore (usually) done properly.

P.S. the old hands will remember "team working", which was the OBM by any other name, and was binned a few years back, and any hands will remember "cradle to the grave", which was a traditional allocation system, and was being pushed as recently as two years ago. Round and round we go...

Timely rubbish

2009-07-23T11:52:00.000-07:00

When I arrived at my desk this morning, and found it covered in a thick layer of files, I was, naturally, a little unimpressed. But my sour mood was suddenly displaced when I checked my inbox, and found an email from our dear leader, the DPP, launching "The Public Prosecution Service: Setting the Standard".

In short, I was wrong to be gloomy. The chaos and stress that then followed for the rest of the day was in fact "the strategic positioning of the prosecution service in the modern environment". Furthermore, I was wrong to be anything other than kind to the CPS, as we "have risen positively to the demands of change. But it is time to bank those changes and move on".

Does one "bank" changes? One certainly changes banks, usually when one's financial advisors suggest it to one over tea. Arguments about appropriate verbs aside, I can see what he means; "that last chap did a lot of work, and there's some credit in it for me". Actually, that's a bit unfair. We have a whole department devoted to churning out this rubbish, and the DPP probably had very little to do with drafting the document. We even paid an external design firm to produce the glossy leaflets.

In any event, Keir Starmer and Ken McDonald are both extremely well regarded individuals at the Bar, and for good reason. Keir Starmer did a lot of pro bono (sorry, that's latin-speak for volunteering) for these two. You can still see a video of a youthful DPP explaining his involvement on that website. His career has been stellar since. Ken McDonald has gone back to his old chambers, shared with Miss Booth QC, wife of former PM (and future overlord of Europe) Tony Blair. Ken seems to have some very sensible views on issues of recent concern.

I seem to be having trouble concentrating on what I'm saying. A marvellous quality in a lawyer. So anyway, from one premier league defence-human-rights-type-chap to another, and the organisation rumbles on.

Out-of-court "disposals" are on the march, onwards and upwards. The DPP acknowledges in the PPS press release that the challenge is clear for the need for "out-of-court disposals to be properly regulated, consistently applied, and publicly transparent" in order to maintain public confidence.

Here's a thought Director, if parliament wanted this sort of oversight, why did they not not make some sort of rules governing maximum penalties, issue some sort of guidelines for the most common situations and circumstances, and then get some respected members of the community to give up some of their time to decide what to do? Why didn't parliament want people watching the whole thing if they so choose? Hey, if parliament wanted public confidence, parliament may even have wanted to add a bit of solemnity to the proceedings, parliament could even have required that we stage the whole shebang in a formal setting, or even make people dress up in suits and other formal attire. People would know what was going on, and everything. So the way forward is clear -- don't tell a soul, and let's crack on with dishing out the cautions.

And just as my blood pressure dips into the safety zone, so, in the middle of all that press-release nonsense that plopped into my inbox today, my eye alights on the bit which seems to have been crafted to irritate me personally: "Today, public prosecutors prosecute their own cases".

Right, that's it. I can't take any more. Full review of the "OBM" to follow...

By way of introduction...

2009-07-22T13:08:00.000-07:00

For the benefit of those amongst us who have the good fortune never to have had dealings with the CPS, the Crown Prosecution Service is the body responsible for criminal prosecutions in England and Wales. It came into being in '86, employs a very large number of people, and consumes a very large amount of taxpayers' money. The head of the CPS is the DPP, or Director of Public Prosecutions. Areas around the country mirror police constabularies, and are headed by Chief Crown Prosecutors. The people you see in your local magistrates' court are several rungs down the ladder from these lofty individuals.

Broadly speaking, the process of a crime through the criminal justice system should be as follows:

Crime reported to police

Police arrest suspect

Police gather evidence

The CPS are passed the file of evidence

A lawyer considers the evidence, and the public interest in a prosecution, before deciding what charges are appropriate, if any.

Suspect charged and appears before the courts

Plea entered

Trial or sentence, as appropriate

I am professionally involved in rendering stages 4 and beyond as Kafka-esque as possible.

In short, the CPS is universally disliked by the other parts of the criminal justice system. The police hate it when they arrest a well-known villain, who is pointed out on a street corner by the victim of a mugging, and we don't prosecute. The mugging victim probably isn't too impressed either, but at least he gets a polite letter not really explaining anything -- more of this anon. The courts hate it when we mess them about. The judges and magistrates hate it when we fail to comply with orders. The defence hate it when we don't comply with our disclosure obligations, change our minds at the last minute, and generally give them the run-around. Defendants hate it when they are in prison for 2 months before someone with a grain of sense drops the shoddy case that had previously been cobbled together.

Before I am instantly pigeon-holed as disaffected amd cynical (perish the thought), I should point out that I consider prosecuting criminals to be an essential part of a functioning society, and is something that must be done well if justice is to exist. It is also extremely satisfying to have someone thanking you through tears of relief after a long trial, following which their violent and abusive partner has been convicted and carted off to the cells.

I now fear that technical language will occasionally be unavoidable, but I shall do my best to keep it comprehensible for the lay reader. I shall also strive to avoid latin phrases, which are a pretentious lawyerly affectation, and should be kept de minimis.

And so to business. I will touch on the following topics in the posts to come: prohibition / legalisation, prison, rehabilitation, civil liberties, police action, the essential role of coffee, CPS policies, communication with victims, community engagement, proposed legal aid reforms, Labour's criminal justice policies, the Tories' criminal justice policies, the Lib Dems' criminal justice policies, and just for a laugh, the BNP's criminal justice policies.

If readers wish to hear an extremely unofficial, and entirely honest CPS viewpoint on a particular matter, with the obvious exception of real cases, then do mention it.

Welcome

2009-07-22T12:28:00.000-07:00

I am a lawyer employed by the Crown Prosecution Service. I shall not venture any information beyond the following; I spend a lot of my time in court, and the rest in a large inner-city police station.

I intend to use this blog to keep a record of day-to-day life within the CPS. This will be a warts-and-all account, untouched by the press department, and most certainly not "spun". I intend to include all of the frustrations, difficulties, and annoyances of a career spent in public service, and within the criminal justice system.

Whilst I will discuss actual cases, I will add bits, take bits out, make bits up, change names and places, and generally prevent people in real life from becoming identifiable. In adopting this model, I shamelessly poach the blogging style of Bystander and Inspector Gadget, neither of whom I know personally, but both of whom I hold in high regard, and commend to you.

I shall endeavour to inform, and perhaps, with a little luck, even amuse my reader. Your comments and suggestions are welcome, and I will also try to read all of my emails promptly. So that there is something of a level playing field, I propose to set the scene with a brief introduction to the CPS and the criminal justice system. And away we go...