Then they came for the Lawyers. The fall of Britain to follow.

Every now and again lawyers and the judiciary find themselves in the crosshairs of ministers and their allies in the press. The Home Secretary Pritti Patel equated Lawyers with people smugglers. She said

“Those defending the broken system – the traffickers, the do-gooders, the lefty lawyers, the Labour Party – are defending the indefensible.” 

Call me oversensitive but I rather resented that.

Just think about that for a moment. If it is a broken system who has presided over it during the last decade?

Is there something essentially wrong in the Home Secretary’s mind about people who are doing good? Does the Home Secretary wish to represent the opposite of doing good. Some might think so.

As for being ‘lefty lawyers’ that is a substantial assumption made I suspect without regard to the variation and diversity of views within the legal profession. Not all lawyers are left wing by any means, even  those doing immigration work. There are many Conservative lawyers known to me personally. Some are less inclined to support the present administration because they feel the party no longer represents Conservative values any more but they can speak for themselves.

No one I know in the legal profession would ever ‘defend a broken system’. What they do is represent people trapped in a broken system for which you are entirely responsible. To refer to lawyers in the same breath as “the traffickers“ is a deeply insulting smear by association. I am not sure what kind of Home Secretary it is fails to grasp the distinction between lawyers and the clients they represent. Except of course perhaps a Home Secretary who to please her “audience” would choose to malign a whole profession to that end.

But of course the Home Secretary is not alone because sure enough up pops the usual suspects on the back benches like John Redwood MP who said

“Time for government to send an even clearer law to the courts to tackle people smuggling. The courts keep finding against the Home Secretary as she takes on the illegal migration business.”

Mr Redwood fails to cite a single example of decisions that he feels the court have got wrong. It does not occur to him it seems that the Home Office may have been acting unlawfully might account for the courts “finding against her”.

There have been many respected people and institutions who have already condemned the proposals of the Home Secretary as unlawful and putting the clock back 50 years on her proposed treatment of asylum seekers.

As Kate Allen, Amnesty UK’s director, said: “It’s clear that either the home secretary does not understand her own asylum system or she is simply determined to shirk even more responsibility for providing protection to people”.

I am not sure but perhaps they mean provisions like the Universal Declaration of Human Rights, Article 14(1)

 “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

And as the United Nations objective 21 provides “States should put in place mechanisms and allocate resources to ensure that the IHRL protection needs of all migrants can be assessed individually and with due process”.

So lawyers are involved in ensuring the government obeys international law. Many asylum seekers do not obtain legal advice until 24 hours before a proposed deportation. It is not lawyers fault that the government has not provided more adequate earlier access or streamlined the system to be more efficient and humane. Immigration barrister Alasdair Mackenzie of Doughty Street Chambers said “ I wouldn’t accept that it is broken in the way Pritti  Patel suggests. A majority of people who apply for asylum get it, which suggests that it is not being abused.The reason that endless claims happen is because the Home Office don’t get it right first time.” So perhaps it is in fact not Lawyers at fault at all! Delay is the enemy of economic efficiency for lawyers and tragic for their clients in terms of insecurity.

But this  is really not the point of this article because I detect a theme running through the heart of these issues that have cause such controversy in the last year or so. That theme I regret to say is a contempt for the rule of law, the judiciary and those lawyers who work within our legal system.

We should not be surprised perhaps because the government has treated Parliament at times with the same disrespect. Perhaps the most egregious example of that being the governments illegal attempts to prorogue Parliament to prevent scrutiny of elected representatives.

The government acted unlawfully but if you listened to the coordinated attacks upon the Supreme Court by the government and its allies you would have  thought it was the court that was acting illegally.

I wrote :

“The Supreme Court adjudicated because the Government acted quite beyond the limits of parliamentary convention and the court therefore has the power to intervene. This is only ‘new’ in the sense that the Government exceptionally went beyond the conventional bounds and for unlawful reasons. It was the misconduct that was new, not the Courts power to intervene.” 

See here for the full article. 

https://mintedlaw.wordpress.com/2019/09/26/brenda-and-the-supremes-is-the-supreme-court-inventing-a-new-tune/

It was at that time that I realised this was a different type of government. A government prepared to flout Parliamentary convention and the law of the land for political ends.

Then of course we have the present spectre of a government minister in Parliament reading from a prepared transcript that Her Majesty’s government was legislating to break international law albeit in a ‘limited and specific way’. I do not think many of us ever contemplated a British government announcing to the world in effect that our word was worth nothing even if set out in international treaties.

The ‘internal Market Bill’  undermines the foundations of the Withdrawal Agreement & domestic and international law as a whole.

It even makes sure in its provisions that there can be no challenge to this blatant illegality via means of  Judicial Review.  No challenge. That is deeply worrying. Legislation that removes judicial scrutiny is exceptionally dangerous. This could lead down a very dark path. I commend this article of David Allen Green who always writes well on these matters https://www.prospectmagazine.co.uk/magazine/an-enabling-act-could-happen-here-parliament-law-constitution ‘An enabling Act could happen here.’ and who set out the dangers: ‘The government could obtain absolute power and we would be impotent to prevent it’ referencing the ‘enabling act’ in Germany in 1933.

I looked into this and found that on March 24, 1933, Hitler introduced, and the Reichstag passed, the Law for the Solution of the Emergency of People and Reich or the “enabling act” which constituted the major pillar of Nazi rule. See:- ‘They shoot the Lawyers don’t they’. Law in the Third Reich. By Mathew Lippman 1993,

It is worth noting the uncanny comparison with our politics today. Read the next paragraph carefully. Hold in mind our UK Government by decree or as we call them ‘statutory instruments and regulations. Hold in mind the announced proposed breach of law and International treaties.

Article One abrogated the separation of powers and authorised the executive to promulgate decrees without parliamentary consultation.’

Article Two permitted the government to “deviate” from the requirements of the constitution.’

Article Four authorised the executive to enter into treaties without legislative approval.

So when a minister in the UK Parliament announces the breach of law and treaties this is not the first time this has been done in history. I find that chilling.

Once again we have familiar attacks upon the courts and lawyers from the Home Secretary. We seem to be a favourite target when it is needed to divert attention from other matters. Covid  perhaps? We seem to be scapegoated for the governments own failings for example we have to attend court even if unwell it was suggested, we have to work additional hours in criminal courts because of the government failure to provide court sitting times and buildings prior to Covid and now we are responsible for the failings of asylum law and mentioned in the same breath alongside trafficking criminals.

Let me quote a  government source about a politician.

“He detested lawyers as pen-pushers who filled whole volumes with tangled commands and prohibitions and always had their noses buried in ridiculous tomes. He once confided to a gathering of confidants that going to law school must turn every rational person into ‘a complete idiot,’ and that for his part he would ‘do everything he could. . . to make people despise a legal education.”

That was Adolf Hitler. But are these words from the Home Secretary very far away from that ? 

‘Those defending the broken system – the traffickers, the do-gooders, the lefty lawyers, the Labour Party – are defending the indefensible.” 

The level of abuse is similar isn’t it? Amounting to denigration of Lawyers. In fact worse by associating lawyers with ‘traffickers’ in ‘defending the indefensible’.

What we certainly do not defend is a government announcing it is going to break the law. Hitler would have approved because he said:

 “Furthermore, I expect the German legal profession to understand that the nation is not here for them but that they are here for the nation, that is, the world which includes Germany must not decline in order that formal law may live, but Germany must live irrespective of the contradictions of formal justice.”

Much to the dismay of the legal profession the failure of some government law officers to resign in protest at the proposed illegality is symbolic of the moral bankruptcy at the heart of this government.

I am reminded in the same article of what the Nuremberg Court said of a judge complicit in the Nazi corrupt debased and murderous Judicial system. 

“ The Tribunal fully recognised that Schlegelberger (The judge) was a “tragic character” who loved the “life of an intellect, [and] the work of the scholar. “I Despite the fact that he likely “loathed the evil did,” the fact remains that Schlegelberger “sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security.”

‘These legal officers and officials thus owe their ultimate fealty to internationally proclaimed principles of justice rather than to the ephemeral dictates of domestic law.’

The same  applies now to the UK.

Finally In an advert triumphing Pritti Patel’s assault upon vulnerable asylum seekers and their human trafficking associating lawyers she said:

 “As Conservatives we do not measure the depth of our compassion in 280 characters on Twitter but in the actions we take and  the choices we make”

To which I replied in this way.

Neither do we lawyers whom you relentlessly attack.

We measure our compassion in the work we do in your broken system.

We measure our compassion by continuing to work in underpaid legal aid firms and practices.

We measure it in fighting your cruel & oppressive laws & regulations.

Enjoy your brief moment of power when you misuse your office as ‘bully pulpit’ to abuse others. It won’t last. But the damage you do might. Your compassion is hard to detect in the words you use & in polices you espouse. Lawyers do their duty. You do your worst.

And now the Prime Minister has weighed in criticising lefty human rights lawyers’ by publicly accusing them of hampering the criminal justice process. The Law Society said his ‘divisive language’ puts lawyers and their clients at risk. https://www.lawgazette.co.uk/news/johnson-opens-new-front-in-war-on-lefty-lawyers/5105891.article

All my career I and other lawyers have served Justice by ensuring people are properly represented and that only the guilty are convicted whilst the innocent go free.

The PM’s remarks increase the danger we are placed in by denigrating our role. There are those who will take those comments as a signal that we are fair game. They also make our role difficult to sustain as they reduce our reputation for integrity in dealing with others

I am proud to be a lawyer and I am proud of the lawyers who navigate the complex and harsh immigration laws. Although you and your supporters like Mr Redwood would like the courts,  tribunal’s and lawyers all to be servants of the will of number 10 Downing Street, I am  confident that unlike Germany in the 1930s Lawyers will serve the law and their clients first and foremost and we will not be intimidated by your abuse and intimidation.

Robin Murray

06/10/2020

Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.

Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

9/11 The (terrified) English Lawyer’s Tale

“Now look, you are going to be a dead English lawyer and your family with you unless you help me take these guys out”

How did it come to this? I was just on a family holiday. But here I was sitting in a plane and facing a potential life and death struggle with terrorists. The FBI agents with bullet proofed vests and automatic weapons were yet to appear. How did this happen to me?

9/11 – The news.

19 years ago this day, my family group and I had spent a few days in Savannah and we left our B & B on of 11 September 2001 at 8.20 am. It was a lovely sunny day and we were all in good spirits. Asserting drivers rights I chose the music channel. I found a great radio station playing blues, soul and R&B. “Just listen to this track guys, it’s great. They don’t write music like this now “. It was Sam and Dave singing “soul man“. I remember the recorded auto guide at the ‘blues and soul Museum’ in Memphis saying what a great opening line to the song this was:-

‘Comin’ to you on a dust road
Good lovin’, I got a truck load
And when you get it, you got something
So don’t worry, ’cause I’m coming
I’m a soul man, I’m a soul man
I’m a soul man, I’m a soul man, I’ve got it all’

So evocative as you can just visualise the scene.“Coming to you on a dust road”. I turned up the volume. “Too loud – please turn it down”. I was about to explain you just cannot turn down Sam and Dave singing soul-man. Not when you are driving along to Montgomery Alabama. But suddenly there was an interruption to the music and an announcement. This is where a simple holiday vacation turned into a very different experience and the simple pleasure of driving from Savannah to Montgomery and listening to blues and soul on a lovely sunny morning came to an abrupt and shattering end. At 8.45 am an urgent voice broke into the music. ‘We interrupt this program to bring you news from ABC. “A plane has flown into the North Tower of World Trade Centre in New York City”.

‘What’s that? Oh my God. An accident?’ At the time when we heard the first news it was a matter of interest rather than horror. I remember in a trivial way my mind flitting to the old movie ‘King Kong’ where planes fly around the Empire State Building trying to attack the giant ape. It seemed like a freak accident. But then the news became horrifying. The news reported a second plane, 18 minutes after the first plane hit, appeared out of the sky, turned sharply toward the World Trade Centre and sliced into the south tower near the 60th floor.
Then a third plane crashed into the west side of the Pentagon military headquarters at 9:45 a.m. Just 15 minutes later the South Tower collapsed. Followed by more horror as at 10:30 a.m., the north building of the twin towers collapsed. Then came the news of Flight 93, later, quite soon we heard after a struggle by some passenger who fought the terrorists (‘let’s roll’) crashing in a rural field near Shanksville in western Pennsylvania at 10:10 a.m. We listened aghast.

All this is of course a well-known but I wanted to set out the brief timeline. From listening to Sam and Dave at 8.45 am until 10.30 am all we listened to on the radio was accounts of planes crashing into buildings or crashing somewhere.

It immediately became clear that America was under attack but driving along the interstate in our SUV we had no idea whether there were other domestic planes about to be utilised as death dealing weapons. So we were driving along and looking up at the sky just to check if there were more planes about to attack. This may sound silly or over dramatic but for all we knew, at the time there might have been scores of planes carrying death and destruction to America. The news just kept coming at us. At one point I remember driving along the interstate highway adjacent to an Air Force Base (possibly Maxwell) and thinking supposing the Air Force Base is attacked we drove past? Perhaps military bases as well as the Pentagon were going to be hit in a second wave of death and destruction. I wish this highway was not so close!

I recall we broke off to have lunch at the diner and hearing some local worthies discussing events. “Yes it’s goddamn awful. We’ve contacted New York and said we will offer what assistance we can to their emergency services but they have asked us to stay put for now”. The atmosphere in the diner was understandably subdued as indeed was our own mood. It seemed strange to be doing an ordinary thing like having lunch in a restaurant whilst the world appeared to be at war.

We were not sure how long we would now be staying in America. So I phoned ahead to the hotel in New Orleans where the next day we were supposed to stay prior to our flight the following morning back to the UK. I booked an extra couple of nights. It was by no means certain that any planes would be taking off for an indefinite period. I was right as it was announced that all domestic and international flights to and from the USA were grounded. This was troubling on a selfish personal level as I had a law practice to run and family obligations. Mundane considerations perhaps but these are the things your mind turns to in such circumstances.

We stopped off at Montgomery Alabama for the night having visited the civil rights memorial. We went out to dinner that night to the ‘Old Brewery Club’ just like regular tourists but mentally anything but in a happy holiday maker’s frame of mind. We were distressed for all the victims and worried how and when we would get home to the UK.

The next morning we drove off towards New Orleans. We had a discussion whether we should head straight to the hotel but I had always wanted to visit Monroeville, which was a short detour but which was the home of Lee Harper who famously wrote ‘to kill a Mockingbird’. Many lawyers have been inspired by that book including me. It is frustrating that the deep south of England bears no or little relationship to the Deep South in the US in the book for this ‘would be’ Atticus Finch. Despite the crisis we decided to visit there. Whilst in the town we went into the courthouse. I was interested because the film of ‘To kill a Mockingbird’ replicated the exact physical layout of this court room. So it seemed like walking onto a film set. I was interested to see many English law books in the library such as Blackstones legal commentaries. A reminder of the mutual common-law history of the United States (as it became) and the UK. I sat on the judge’s bench and actually did bang a gavel (We do not have these in the UK) and discharged the jury directing them to find Tom Robinson not guilty and saying that he should leave the court without a stain on his character. Much eye rolling from family members.

As we left the court room I saw a crocodile of small school children with their adult supervisors crossing the road and I spoke to one and asked them if the children had been traumatised by the news and I was told that they were quite oblivious and the adults were trying to keep it that way which seemed to be sensible given their tender age. Again I was struck by the juxtaposition of normality of the scene with the crisis that had developed following the terrorist attacks on America. Happy chattering children with such terrible events in the background.

Eventually we booked into our hotel in New Orleans and drove to the airport to check the position about flights home to the UK. Our flight had been booked for the subsequent day. There were none and none anticipated. One person behind the desk said there were not anticipated that any international flights would be taking off possibly for weeks. But we could try again the next day and see what happened. We fact spent two days in that hotel turning up at the airport every day in the forlorn hope that we may be told something different about a flight back home to the UK. We worked our way through the menu at ‘Dennys Diner’ the local restaurant. Again I was struck by the normality of people ordering and being served with the background of non-stop horrific news coverage as rescue workers desperately searched for survivors. . We had already spent time at the beginning of our vacation at New Orleans and after the attack on 9/11 we did not have the heart to do any more sightseeing or exploring. I regret that now but we spent the whole time glued to CNN and other channels watching the developing news.

Eventually after three days we were told by a really sympathetic man behind the information desk that there was a possibility of a flight to the UK but not from New Orleans as we would have to fly from New Orleans to Houston Texas to connect to that flight from that city.

This is where things became extraordinary.

Bin Laden – my part in his downfall.

Echoes of Spike Milligan‘s great book title here. ‘Hitler my part in his downfall.’ Just as absurd but still people have asked me later to write down my experience of that day as we tried to get home.

We waited to board the flight from New Orleans to Houston to get our connection to Heathrow. We were told later that our flight was the first plane to take off from US mainland territory apart from one other which simultaneously took off for Tokyo. The atmosphere in the boarding lounge was quite extraordinary. Hardly a voice was raised or heard. Everyone was looking at each other and we were no exception because we feared our travelling companions given what had happened a few days previously. In the lounge we noticed a man in long Arab dress. I believe they call it a Thobe or kandourah.

There was also a man with a very dark skin who looked Arabic who was wearing chinos. I was not alone because a lot of people are looking at these two men. A few days after 9/11 people who looked Arabic were not my chosen travelling companions of choice on a plane. There are an awful lot of terrible consequences of terrorism and one of them is to breed suspicion of people who do not look like you. Normally I would never have given a thought to racial profiling but after a diet of non-stop 9/11 news of terrorism I am afraid I succumbed to that insidious fear. I am ashamed to say I agreed with some travelling companions that we did not like the look of those two individuals.

Eventually the flight was called. We sat on the port side of the plane (right side facing the cockpit). We were about 10 rows from the front. I saw the man in the Arab dress walk behind me smiling serenely the whole time. What usually would have seemed an innocent facial expression on this day seemed somewhat sinister and disturbing! Why was he smiling? He took a seat towards the rear of the plane.

Across the aisle from me sat the man of dark complexion wearing chinos, the other man we thought might be a terrorist. There was a gap between him in the aisle seat across from me and another man who sat near the window. What was troubling was that the man wearing chinos kept looking behind at the man wearing Arab dress. It would appear they were in communication but didn’t speak as the distance was too great. Suddenly chino man got up and walked towards the front of the plane and sat elsewhere. Why did he do that? It was a ticketed flight with seats allocated.

Then the man sitting next to the window seat across the aisle moved to the aisle seat where chino man had been sitting and reached across the aisle to touch my arm to speak. Pointing forward to Chino man he said “I don’t like that guy _ do you like that guy? “ I said no. I didn’t like that guy actually I wasn’t very keen on him at all and I didn’t particularly like the man wearing Arab dress sitting behind us. The man said “Exactly I’ve been watching him too. I think they are working together. Are you thinking what I am thinking?” I think we’re in trouble I replied. “Exactly” he said. “Look I am member of the United States Air Force and we have to take these guys out”.

Did he really say ‘Take these guys out’? To be honest I am not what you might call a ‘take these guys out’ sort of person.

I found myself sounding increasingly English but not in a cool James Bond way. More a bit like Terry Thomas in an old comedy.

“Er – this -Er -WE”? (With an emphasis on the last word). Do you mean to include ‘ME’ in that ‘We’?” – desperately hoping he would say of course not. But instead he said “Yes of course I mean you. I’m talking to you“.

Well – I said – “I am very anxious to help of course but take into account that I am in fact, how to put this? Just an English lawyer on a holiday vacation with his family. I am not usually someone who gets involved in unarmed combat. Not much call for that in my local courts you see?”

The USAF man fixed me with a very firm look and said words that I had never really thought would be spoken to me.

“Now look, you are going to be a dead English lawyer and your family with you unless you help me take these guys out”.

“Oh I see”- I replied.
“You do have a point.
Putting it like that I do concede you have a point.
A dead English lawyer with a dead family.
Not a good option really. Not good at all”.

Suddenly the internal air conditioning in the plane seemed inadequate. I felt hot.

He replied “well there is that other option which is we take these guys out. Look at those heroes on that plane in Pennsylvania that they took on the terrorists.”

“Er – Excuse” me I interjected “but didn’t they all get killed?”
Yeah- the airforce guy replied “but they might have won and what choice do we have? We have two obvious terrorists on this flight and they are going to kill us all if we don’t fight back.”

This cannot be happening to me. This happens to other people, normally in books or on films or televised fiction. But just in case it was real I said –

“Yes I see your point.
I do see your point.
It is an awkward situation but I would like a second opinion from the people who are in charge of the plane.”

At this point USAF man calls the stewardess over. He says to the stewardess-

“Look why have you allowed that guy in the chinos there move from this seat to another seat near the cockpit before the plane has taken off”?
She replied “oh no it’s okay don’t worry”.
But she looked very worried herself. In fact absolutely terrified. It was not reassuring. Had she been threatened? Had she been got at?

Air Force man looked at me and shrugged. He said “We have got to do this. Maybe others will help if we start. We are talking quietly.

Family by this time are asking me what I am talking about at this point. What’s going on? “Nothing it’s okay. All good”

I turn back to air force man. I ask him how we handle the situation. After all they must have weapons. Otherwise how would they have been able to hijack the other planes? He says “We just get what we can and attack them with whatever we have when they make a move on the cockpit and try and get to them before they get to the pilots.”

He asked me if I had anything I could use as a weapon. I had a bag full of books and DVD’s which was quite heavy. I said I would use that and try and smash the terrorists in the head or face but I asked what about the fact there were two of them. He said “we will try and take the first one out up there and then turn back on the second one and hopefully other passengers will help us”.

After what seemed an age the plane taxied off to its take -off position. Probably only 5 minutes but it seemed like an hour. We were aware that the terrorist would not strike until the plane was in the air. In the take-off position we waited for what seemed like close to an hour. There was no conversation anywhere on the plane. It was quite obvious that everyone was absolutely terrified. After all who through choice would want to be on the first plane to take off from the USA after 9/11? For all we knew every airport in the whole United States may have been inundated with terrorists. They have not stopped them getting on board before.

Strangely by this time I had calmed down. In fact I became resigned to the situation I had been placed in. I realised that we were all in serious trouble and I thought well at least I’m going to go out fighting for my own life and that of my family and fellow passengers. I am no hero but I was resolved not to be a passive victim and was determined to fight back. I psyched myself up into an almost homicidal state really but (how I now remember it) in an icy Zen way. I grabbed tightly the heavy bag of CDs and DVDs and was ready to attack the terrorists who dared to impose their poisonous beliefs on innocent people by taking their lives. I had lived in the shadow of my brave father who was mentioned in dispatches for gallantry during WW2 and had been a commended police officer. I thought at least I could make him and my Mother proud if somehow they learned I had gone down fighting if this was to be the end for me.

After an hour waiting at take – off point – in the middle of the runway, bizarrely the plane then turned around and instead of taking off taxied all the way back to the terminal. I have never known that happen before. There was no explanation from the pilot or aircrew. Total silence throughout this. We wondered what was happening. We could then hear the stair ladders being connected to the plane and suddenly the aircraft doors were opened.

Flooding the interior of the aeroplane from the open doors came a large number of armed FBI paramilitary looking types. Bullet proof flack jackets, with FBI forage caps and all holding automatic submachine guns. I felt some strange emotions at that moment. Oddly I felt a little deprived in not now having to take action or fight because I was so in tune mentally with the thought of doing so. Quite frightening in retrospect how murderous ordinary people can become in extremis. At the same time I thought “Thank God – the cavalry are here’.

We all watched somewhat stunned as the FBI came storming onto the plane. At this point the man who had moved to the front wearing chinos stood up and faced them. However instead of attacking them he spun round on his heels and raced ahead of them towards the back of the plane. I turned and watched. Chino man stood and pointed out the man in Arab clothing. I saw the FBI point automatic weapons down at this man in his seat and command “get up- put your hands behind you – you’re coming with us”. They then marched him past us off the plane. He smiled beatifically the whole time which was very odd for someone who had machine guns pointed at them and was now handcuffed behind his back. But he was escorted right past me smiling away.

We were then told by the stewardess we had spoken to earlier that the man in chinos was in fact an air Marshall. He was one of the good guys. On balance therefore it was probably a good thing that the air force man and I did not kill him. “Firstly your Honour, can I explain that I am English and also that I am terribly sorry for what I did to your Air Marshal”!

Over the intercom came the southern drawl of the pilot. “We are really sorry about that ladies and gentlemen. There was a little issue of security with that gentleman who was taken off but he is now in the capable hands of the FBI and we are now leaving N’Olands and are going to resume our flight to Houston. We hope you enjoy your flight! Enjoy?

A middle-aged American lady a few rows back from me called out to the stewardess “darling I would like a Bloody Mary – in fact make it three.” Nervous laughter from a few. Otherwise the plane was rather silent. It had been traumatic.

I then formally introduced myself to the air force man and shook his hand. I asked him about his role in the US air force. He said he was in personnel which left me a little stunned given that he was about to lead me into battle against terrorists a few minutes before. I thought he would have been in a special ‘nutter bastard attack squad’ or something.
So being English I did what English people do in position in stress which is to joke and ‘take the Michael’ out of someone.
So I said “what were you going to do give the terrorists career advice?”
He said “I have a different role in wartime or combat zones. I’m involved in logistics and statistics.” Not reading the signals I carried on with the banter. “What do you – do count the terrorists”? He looked a little hurt.
I quickly said you are one of the bravest man I’ve ever met and I want to thank you so much. We chatted some more and parted at Houston as good friends. I wish I had taken his details. A real hero.

I remember as we got off the plane talking to some other passengers and asked them if they had been frightened. All of them said they have been absolutely terrified before and during the flight.

We had a five hour delay before our plane at Houston was ready to take us to Heathrow.There was a semicircular bar with a large TV screen. As the family went off shopping in the airport I went and got yet another drink and sat at the bar ordering a double scotch. An American asked me what I thought about the news because he detected my English accent. Oh I said my country will be at war within 48 hours alongside you. Why do you say that? I was asked. Suddenly all the row of mainly male drinkers went quiet while I spoke. It was rather unerving to tell you the truth.

I said “we will be at war because this is a disgusting attack on Britain’s strongest ally. We will regard the attack on the USA as an attack on all of us”. I said that I believe many countries in Europe will feel the same especially those that belong to NATO. I appreciate some regard Americans as rather nationalistic and ‘gung ho’ but these ordinary Americans sitting at that bar seemed touched and grateful for those few supportive words. I didn’t have to buy myself any more drinks in the next hour or so until I was dragged off by the family to get on the plane.

On the plane it took a direction via Washington and then flying south of New York and we could see smoke from the direction of New York. Obviously from the Twin Towers.

We were very nervous because of the obvious risk of terrorism on this flight but we safely headed out into the Atlantic on the way to London. I spoke to the air stewardesses whilst getting a coffee and found some of them in tears because they had lost friends who were among the aircrew on some of the planes involved on 9/11. They were also fearful. I explained what happened on my connecting flight (my almost battle with terrorists) which they found quite amusing. I also said in my view no terrorist in future can avoid a passenger uprising in the event of them trying to seize control of a plane. “Do you think so?” One of them asked. Certainly I do. I replied. Suddenly and absurdly I was an expert on aircraft terrorism. We were all very relieved to land safely at Heathrow without the plane being flown into the House of Commons or Buckingham Palace or some other likely target.

We had hired a ‘people carrier’ cab/coach and the driver had parked too near the wall for our luggage to be placed in without moving the vehicle. As our driver did this another cab driver waiting for our spot shouted ‘how long you going to be. I have not got all f- ing day’. He was a large short cropped haired red faced man. I did not like him either. I am by nature peaceful but by this point I am afraid having had far more drinks than normal on the plane and being hyped up I just completely lost it. I ran towards the cab driver fist clenched saying “how dare you swear at my family. We’ve just been fighting terrorists – come here”. An absurd thing to say but I got no further either physically or verbally, thank goodness, because this was the point my family grabbed me with my spouse shouting in my ear “Get in the cab. Get in the cab. For God’s sake you are a lawyer. Get in the cab before you get arrested or I’ll never go on holiday with you ever again“. I meekly got in the cab as I was more frightened of her than Bin Laden. The horrible cab driver had quickly driven away and we were taken home by our own driver to deepest Kent. It seemed very quiet and peaceful there. I took my black Labrador Milty out for a walk in the countryside. It was all as if nothing had happened. But it did and the world was not to be the same again for any of us.

And that is the true story of my 9/11 history. 19 years ago. I wish everyone else’s story had ended as safely and like all decent people I mourn the loss of the innocent and I wish to dedicate this account to the astonishingly brave men and women who run towards danger in the essential services both then and now, in the USA and elsewhere including the U.K. I was and remain awestruck by your courage and service. Thank you.

Robin Murray

Friday, 11 September 2020

The Kent police station Virus Protocol. A template for others? (And what happens on the battleground)

I have been pleased to see how well this protocol has been received. Further our information is that other police forces are adopting it in other areas. Firstly what is the protocol? This is how my Tuckers partner Richard Atkinson (and chair of the Law Society CLC) delivered the detail:

 

Kent protocol

 

Dear All,

 

I am pleased to say that with effect from now Kent police have a temporary custody policy on place and this includes a temporary policy on “Custody Interview of Suspects”.

 

The policy has been ratified by gold command it is part of Op Iowa. I am not able to share the document but can tell you all of its details. It was sent to all custody sergeants in Kent yesterday afternoon and it is the policy to be followed with immediate effect. If the police on the ground do not follow then Ch Insp XXXX head of custody, has said that we can use his name if we meet any resistance and has said that you can call him if necessary on his Mobile number xxxxxxxxxxx

 The policy asks first whether it is necessary to hold an interview. It sets out circumstances where an interview is not required. Basically this can be summarised as

 a) Where there is sufficient evidence to prove the case and;

b) The matter is a summary only one or a simple offence against the state, e.g. possession of weapons, drugs, public order, or drink or drug drive or shoplifting of any value or criminal damage under £5,000.

Where an interview is required i.e. the above does not apply then:

 a) The pre interview briefing and client consultation should be conducted by telephone or video using the VC or consultation roomb) It will then be necessary to consider what form of interview is required; completely virtual where all parties dial into a Custody laptop with the OiC in the interview room recording the interview and the suspect on the VC room  and the lawyer dialling in,

or

b)A partial interview, OiC and suspect in interview room, legal rep on laptop

 or

c) all parties required to be physically present due to the severity of the situation. Where all people are present the OiC, AA, interpreter, solicitor are to be issued with the appropriate PPE, which means the same PPE for all.

We do not claim that this is perfect or gives 100% protection but we are key workers and have obligations to our clients so like shop workers and NHS staff we will have to come into contact with people from time to time, however if all of the above is followed it should minimise any risk.

So how has the protocol worked out so far?  I have been personally unwell recently (not Corona I think) so have had to watch from the side-lines. Looking at our Tuckers Dash board and local WhatsApp group has made me feel like I have been visiting an RAF ground control operation as I see the fantastic boys and girls of the firm deployed here or there whirling around like spitfires attempting to hold the line.

In the early hours or days there were of course teething problems. Some junior officers simply did not grasp the seriousness of the crisis or the need for proper protection. But our local Chief inspector was as good as his word and ruthlessly intervened to ensure lower rank compliance. Here are some exchanges I saw:

‘North Kent interview done with me via loudspeaker on mobile. With prepared statement and interventions.

Worked well.’

‘I did two in the end. One via laptop and the other just via phone because the officer didn’t have a laptop. The first one was far better because we could see each other. I had barely any control over my second client who was supposed to be giving a statement and a NC interview. None of it is ideal and there are teething problems atm of course but, in the circumstances, it’s okay.’

‘I had a case at Canterbury – common assault – the OIC, a good bloke , called to say ready at 1800 and would definitely be NFA, I referred to the protocol, they had never heard of it and I told them to contact Chief INSP xxxxx, 10 mins later they called and said NFA.

I think this showed the protocol worked well, It did not sit well giving up work, I know it was the right thing but its odd’

 

Here are some worrying stories which hopefully the protocol will change as it becomes established.

‘Okay, so apparently there is ‘no Skype connection’ at North Kent.  The OIC has suggested a telephone consultation before and after an interview where the client would be unrepresented.  We have, understandably said that that is not acceptable and the OIC is off to talk to custody.  According to him that’s what other firms have been doing!  Amazing.

And

The officer said that they do not have the means to facilitate remote access at Tonbridge. I challenged the officer on the need to reinterview in any event. She is now  going to speak to her sergeant with a view to going to CPS with what they’ve got. If she calls back and says that they intend to interview I will call Chiefinsp XXXX

 

…the officer was quick to point out that there were numerous other Solictors in custody representing their clients. I told her they were no doubt unaware of the protocol ‘

Outcome’ Client re- bailed (pending CPS) without interview. ’

And e mail from a colleague:

Subject: Re: Police interviews

Right, the police are using Cisco webex for the interviews. The officer sent me a link which took me to the page and I entered my name and email address (that the link was sent to) and it let me in.

I’ve just done one and it worked quite well. I was on a laptop in the interview room and could see the client and hear everyone in the room. They could hear me but they couldn’t see me because having my video activated meant that my audio was distorted their end.’

So you can see we have had some battles but with perseverance a tough attitude and timely intervention occasionally from our local chief inspector of custody we have battled through most of these difficulties.

It is my hope that this protocol is followed increasingly. Might I suggest that the local profession across the nation follow suit and engage with their local police forces? You can see how important it is to have the phone number of a high ranking officer to break any log jam caused by uncooperative junior ranks.

I appreciate it is bad form (a little naff) to publicly lavish praise upon colleagues. But my Tuckers Kent partner Richard Atkinson, without compromising our firm’s independence at all has slowly built contacts within the police locally and nationally over a period of years. He has gained some trust and goodwill. The result is this Kentish protocol now being adopted by other police forces and their local profession. This is apart from the huge demands made upon Richard in his role as The Law Society Criminal Law Committee Chairman. When the history of this period is reviewed as special place will surely be reserved for his tireless work, about which he modestly and typically will not mention personally.

Further what this episode shows us how extraordinary valuable, resourceful and determined the legal profession is to serve the cause of access to Justice. They certainly are ‘key workers’. What they also are is undervalued. The profession was already desperately struggling to keep afloat before the Corona virus crisis due to chronic neglect and underfunding. Without further intervention both Solicitors and the Bar will be hard pressed to survive. The Government will have to cope with that collapse and will struggle to do so.

I wish to dedicate this article to my friends and colleagues in the front line at Tuckers Solicitors and to all of you criminal lawyers out there fighting hard for your clients and firm. You are amazing and it is time Society and the Government recognise you as such.

Robin Murray

Monday, 30 March 2020

Boring Biog.
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

 

 

 

 

 

 

 

Police bail consultation. A serious proposal or a political dead cat strategy.

The Government has issued a consultation on police pre-charge bail. Click here:   https://www.gov.uk/government/consultations/police-powers-pre-charge-bail

As criminal lawyer I can with some confidence predict how many cases the consultation proposals will beneficially impact. Virtually nil. Why do I say that? It’s quite simple. The proposals sound superficially attractive but offer wrong solutions to wrongly identified problems. This is partly due to pressure from interests groups but mainly because this is a ‘dead cat’ distraction technique employed to make us all ignore the real issue which is police and prosecution failure to prosecute in a timely manner. In fact these proposals will potentially divert financial and human resources for little beneficial impact.

The consultation offers a number of options for review of cases on police bail in the context of a presumption in favour of bail (with the possibility of conditions) with a shift away from cases being released under investigation. (Or the Legal limbo as I and others see it).   See Table A to the consultation which sets out 3 models with proposals for various options for bail periods and reviews by custody officers, Inspectors and Superintendents and ultimately Magistrates during such a bail period. There will be up to 4 extensions. These extensions can go beyond 12 months from the last three monthly review stage.

What is the advantage of returning to bail as opposed to release under investigation that lies behind this consultation? It is the imposition of bail conditions because various interest groups have expressed alarm that dangerous suspects having been released under investigation (and thus without conditions) and pose a risk to victims or as they should be referred to “complainants“ (at that early stage as the case has not yet been proved).

In reality police bail conditions offer virtually no additional protection whatsoever. Why do I suggest this? Further why is this problematic?

Breach of a bail condition is not in itself a criminal offence.

When the police arrest someone for breach of a bail condition in an investigation which has not progressed sufficiently to charge the police have very limited powers. In 99% of cases, because they are not ready to charge the police simply re-release the suspect on bail.  So the exercise of arrest for breach of condition uses up the custody clock and police resources. It is disruptive to the police and has only minimal if distressing inconvenience to the person arrested for breach.

Why then some may argue do we not make breach of bail a criminal offence in its own right?  Firstly I would suggest that there would be something potentially odd about criminalising a breach of bail condition when, at the end of the whole process the suspect may be found not guilty.

Secondly in previous times when bail conditions were more often imposed the police were promiscuous imposing quite unnecessarily severe bail conditions, which given the presumption of innocence operated almost as a punishment without a finding of guilt.

Lastly and I suspect from a Treasury point of view the most effective argument is that if quite commonplace breaches of bail were criminalised this would automatically trigger evidential disclosure provisions, possible satellite trials on bail issues and the probable grant of legal aid for those now expensively remanded in custody.

Increasing bail in the majority of cases simply to impose conditions is probably a useless exercise unless the conditions have legal teeth and for the reasons I suggested here that is unlikely.

I think there might be an argument for a special category of offence that might properly attract bail conditions. Violent or sexual crimes for example. They will be few and far between because often they would be charged at the outset rather than bailed but I concede in a few cases bail conditions might be appropriate but for 99% of cases there is no need to deal with this by bringing back onerous bail conditions.

The real problem which these proposals and consultation fails to deal with is the extraordinary delay in resolving investigations.

This has nothing to do with the imposition or not of bail conditions and all to do with the way cases are now investigated. Whether it is bail or a case released under investigation if there is no realistic target date for conclusion of the investigation these will just drag on often for many months. Police officers will focus on dealing with matters immediately before them such as an arrest rather than catch up with paperwork or other investigative work unless there is a serious time-limited structure for all cases.

When writing about this previously I suggested exactly that time focused approach.  See: RUI ‘Released under Ignominy’ A review base system but with an emphasis on court oversight. This consultation is far too dependent upon other police officers reviewing police officers with the magistrate’s court as the fourth and final review. But there is no actual time limit simply a review which although repeated every three months could still lead to an indefinite legal limbo.

And all with all those cases that would still be subject to ‘release under investigation’ there is no proposal in this consultation for any court based review which I think is simply wrong given the injustice to cause both the suspects and complainant. There ought to be a cut-off point whereby the matter is reviewed by the court. I would suggest six months at a maximum before the matter must go to court.

In addition to the indefinite nature of release under investigation there is also the chaos caused by suspects moving and not receiving the postal notification of summons or charge. Chasing up the police is disastrous for the legal profession in terms of cash flow because we are not funded in order to do this work.

I return to the proposals I made previously.  An interim review system with most cases being dealt with under release under investigation but with the defence having some input which although may involve some public expenditure (a fixed fee) may result in savings caused by removing undue delay. Thereafter an application perhaps by video link by the police with the defence having some input and being able to make representations about possible lack of due expedition. Rather like the existing police application for extension of detention.

Something is wrong because there is tumbleweed blowing through the courts (those which have not yet been closed) . It is not that the crime rate has fallen overmuch but few cases now are prosecuted. The police blame an ‘over picky’ CPS (one officer told me papers were returned as one attachment was upside down but this is anecdotal stuff). The CPS complain about inadequate case preparation. Some senior police officers are becoming increasingly concerned about junior ranks not investigating RUI cases expeditiously.

I think the government would do well to look at current methods of police investigation. There are some police forces who do things differently. For example separating frontline officers from the investigating role by provision of a specialist investigation hub using experienced officers.  According to the College of policing

‘One policing area had taken key investigative work into one central unit, or ‘hub’, in order to provide a ‘one stop shop’ for investigations. This was staffed by 30 officers on 12 month rotations from response duties and six sergeants who had extensive detective experience. Numbers on bail had reduced significantly since the introduction of the hub.’

See https://whatworks.college.police.uk/Research/Documents/Pre_charge_bail.pdf

However I do welcome the consultation and hope everyone will take part and that I have raised some issues here people may wish to take into account when responding.

 

Robin Murray

Thursday 6th February 2020.

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

 

Purdah or purgatory. Save the ‘BoJo one’

I am here to help. Tragically we have an individual, currently residing in 10 Downing Street, who like so many citizens has fallen foul of delays in our Criminal Justice System. How often have we protested about those those trapped indefinitely for months under the ‘remand under investigation’ procedure. i know I have (https://mintedlaw.wordpress.com/2018/03/30/rui-released-under-ignominy/)

But here is someone also trapped in nightmare of being under suspicion of committing a crime with no way of clearing his name despite the presumption of innocence to which he is entitled. Like thousands he is trapped in a system where allegations remain unresolved. This time it is not the police themselves but another organisation that has taken over the investigation who are to blame.

The Independent Office for Police Conduct (IOPC) officials agreed not to announce whether they were going to investigate “possible criminality” relating to Boris Johnson until after the election. This office has taken over from the police this serious investigation into alleged corruption.

‘The scandal over Boris Johnson’s friendship with technology entrepreneur Jennifer Arcuri was reignited on Saturday after the Observer revealed that the independent police watchdog has delayed its announcement on whether the PM should face an investigation into possible criminal misconduct until after the election.’

https://www.theguardian.com/politics/2019/nov/09/boris-johnson-jennifer-arcuri-iopc-delay-announcement-investigation

‘Instead of announcing its decision on the investigation last week, the IOPC decided to cite election “purdah” – the pre-election period during which restrictions are imposed on policy announcements and use of public resources – as a reason for deferring the announcement until after the 12 December poll.’ There is some backtracking now a little as IOPC told The Independent that it was still possible that the decision could be made before the 12 December poll – but suggested it was ‘unlikely to report in time.’ See https://www.independent.co.uk/news/uk/politics/boris-johnson-jennifer-arcuri-relationship-investigation-general-election-watchdog-a9197136.html

I think the issue of Purdah should be resolved immediately to help our Prime Minster break free from the chains of suspicion. There are a number of factors that can come to his aid on this purdah purgatory.

Firstly who are the Independent Office for Police Conduct (IOPC)? From their web site They ‘oversee the police complaints system in England and Wales. We investigate the most serious matters, including deaths following police contact, and set the standards by which the police should handle complaints. We use learning from our work to influence changes in policing.

And crucially this context

‘We are independent, and make our decisions entirely independently of the police and government

.’ https://www.policeconduct.gov.uk/who-we-are

That statement on their web site of independence from Government on the one hand is reassuring but on the other hand confusing. If the IOPC is ‘independent from Government’ why are they subject to purdah rules? According to the report in the Guardian

‘Purdah applies to non-departmental public bodies and other arms’ length bodies but the official list of 407 agencies and other public bodies does not name the IOPC.’

That perhaps is unsurprising given emphasis on independence from Government that is stressed. Otherwise the police and IOPC would have suspend investigations if a senior politician committed any offence being investigated and due to be resolved during an election period.

So if it was alleged that Mr Johnson robbed a bank disguised in a burka (or letter box as he refers to them) that would surely be an investigation needing to be continued. The same must apply to corruption allegations now being investigated.

In the Cabinet Office ‘General Election Guidance 2019’ on purdah it is provided:

‘Public sector bodies (should) avoid becoming involved in party political controversy. Decisions on individual matters are for the bodies concerned in consultation with their sponsor department who will wish to consider whether proposed activities could reflect adversely on the work or reputation of the NDPB or public body in question.’

But should this guidance apply to the investigation of crime by the police and the OIPC? Think of the theoretical bank robbing politician.

What is the duty of civil servants in any event if the OIPC is covered by the Purdah regulations?

Under the civil service code – https://www.gov.uk/government/publications/civil-service-code/the-civil-service-code

Provides civil servants must:-

*deal with the public and their affairs fairly, efficiently, promptly, effectively and sensitively, to the best of your ability.

*comply with the law and uphold the administration of justice.

*take decisions on the merits of the case

And must not:

* act in a way that is determined by party political considerations, or use official resources for party political purposes.

If the merits of the case suggest openness on the subject of an investigation does not suppression of such itself amount to a ‘party political consideration’?

Does not the ‘independent’ IOPC have a duty in law to proceed with all proper expedition to resolve criminal investigations?

Ordinarily such Purdah conventions must give way to a duty under statute or an order of the court. See THE QUEEN ON THE APPLICATION OF CLIENT EARTH – v –SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS.’

http://www.bailii.org/ew/cases/EWHC/Admin/2017/B12.html

Let’s have a brief look at that case. During the 2017 General Election campaign, the Government was taken to court over its decision not to publish its clean air strategy by a date ordered in an earlier court judgement. The date of publication fell within the pre-election period for the 2017 General Election and the Government had cited this as the reason not to publish.

The court ruled

‘In those circumstances, I conclude:

(i) That Purdah is not a rule of law which overrides the duty on the Government to comply with its statutory duty and the orders of the court.’

This is wonderful news I suggest for Prime Minister Johnson. It is just as well that purdah cannot overrule the IOPC in carrying out its ‘independent’ statutory duty to proceed with the investigation and make known its recommendations, given that were the IOPC in the position of not being independent and simply civil servants that the safeguarding route for guidance is as follows:-

‘If civil servants are required to act in a way that conflicts with the Civil Service Code they can make a complaint to the Civil Service Commission. The commission can then make recommendations about how the matter should be resolved. However, the Prime Minister, as Minister for the Civil Service, has legal power for the management of the civil service. Institute for Government.’

See https://www.instituteforgovernment.org.uk/explainers/purdah

What a terrible dilemma that conflict of interest that would create for the PM. I know the PM and the horizontal Jacob Rees-Mogg are fond of Latin tags apparently to demonstrate how educated they are. Here is one they would readily grasp. Nemo judex in causa sua is a Latin phrase that means, literally, “no-one is judge in his own cause.” It is a principle of natural justice that no person can judge a case in which they have an interest. What a relief therefor that Mr Johnson can rest assured that Purdah has been incorrectly cited as a reason to suspend the publication of the report into his alleged wrong doing (which I hope I have clearly demonstrated here) he will not be the ultimate arbiter of the applicability of purdah to this issue being considered by the IOPC. He will be pleased to avoid that nasty conflict as purdah does not apply.

What about the swift adjustment by the IOPC as reported in the Independent that ‘that it was still possible that the decision could be made before the 12 December poll – but suggested it was ‘unlikely to report in time’?

Given the amount of time both the police and the IOPC have already had this might be thought a little surprising. But as we know from the RUI scandal alluded to above there are scandalous delays throughout the criminal Justice system (it having been so grossly underfunded for many years).

However the IOPC has known for sometime that an election was likely and should have increased focus to save the PM the embarrassment of having this allegation hanging over his head. I suggest that additional resources be allocated swiftly to this investigation to put our PM out of his misery. Of course if there is no threshold issue for prosecution that has been crossed that is something which might be easier to resolve. The burden of proof and the presumption of innocence might call for an early and simple resolution. Of course if there is a prima facie case (there we go with that fancy Latin again) then the PM is protected by all the normal rules that apply to safeguard any judicial proceedings.

But I think it is in the interest of the PM to resolve this and it is in the public interest to know prior to any General Election all relevant background of any candidate for public office. I think the same applies to funding of political parties (Conservatives and leave campaigns) by Russian friends of Mr Putin which is a story also suppressed at the moment. But that as they say is another story about which for now I comment no further.

But this piece is great news I submit for those who wish to see transparency in the decision making process prior to the General Election and in particular for the PM who I am sure would wish the investigation to clear his name with the utmost and appropriate speed. He is entitled to not have the bogus excuse of Purdah trapping him without resolution.

‘Free the BoJo one’

Robin Murray

 

11th November 2019

 

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

Brenda and the Supremes. Is the Supreme Court inventing a new tune?

The main criticism of the decision of the Supreme Court is that the Court invented new law. I wanted to address that issue here in as straightforward manner. I hope you will indulge a criminal lawyer. These days it is commonplace for lawyers to operate within a specialty. We all try to compensate for this and broaden our horizons, but lack of time makes this problematic although I have written on other non crime subjects such as the Windrush scandal. ‘Gone with the Windrush.’ Government integrity over Data Protection alibi.

Our law (England and Wales) is adjudicated by the court and is based upon either statute or common law precedent. Part of our largely unwritten constitution incorporates conventions that have grown through usage and adherence over the centuries. They are treated as law.

It has been suggested that the court had no prior authority or precedent to justify their ruling that the Prime Minister acted unlawfully. You can at any time judge for yourselves if you choose by looking at the authorities cited in the Judgement on this link:-

http://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html

But what is at the heart of these criticisms is that it is claimed there is no precise legal authority that the court used that could form the basis of their unanimous judgment. It was, some say, in effect making up the law and acting politically. The historian Professor David Starkey on LBC radio even suggested to the interviewer Ian Dale that the courts had simply ‘cut and pasted’ from an obscure document.

This ‘cut and paste’ slur refers to the courts citation of ‘the case of Proclamations’.  One hesitates in public to contradict the acerbic historian or his journalist cheer leaders but the court did not randomly search and cut and paste this authority. If one does some legal research you will find this legal authority being cited repeatedly throughout history in other cases both ancient and modern. It is also quoted with authority by a number of constitutional historians and lawyers as underpinning a basic principle that the court can review the exercise of the Royal prerogative by the Government.

So what is the ‘case of proclamations’?  It has the full weight of a legal judgement.  The judgement date was on 1 January 1610 and its proper citation is (1610) 12 Coke Reports 74 77 E.R. 1352. It was a case originally about ‘the making of new property’ and the ‘making of starch wheat’. But in reality it was a case involving the accountability of the monarch (now the PM exercising that authority) to Parliament. There was wide consultation among the Judges. This was the judicial response to the King and his ministers:

That true it is that every precedent hath a commencement; but when authority and precedent is wanting, there is need of great consideration, before that anything of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament.’

Whilst that refers to ‘offences’ the subject matter under consideration were not crimes under statute or common law so by clear implication the proclamation is not limited at all to just those. It addresses the limits of the royal prerogative before ‘anything of novelty’ shall be established.  It was not for example dealing with the long established right of the executive to make international treaties or declare war. (Now somewhat circumscribed since the Iraq War).

It went on to say ‘Note, the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm’. I would argue that the Supreme Court, having regard to this, clearly included constitutional ‘convention’ within the concept of ‘custom’.

The Judgement (proclamation) does indeed refer to ‘offences’:

 ‘also the King cannot create any offence by his prohibition or proclamation, which was not an offence before’.

Note the key word ‘also’. In other words in addition to the phrase relating to not changing the ‘customs of the realm’ etc. The proclamation is not limited to offences which is why the Supreme Court cited it.

The reason why this issue of Parliamentary convention is important is because if the Prime Minister acted within normative conventions this would have prevented the Supreme Court on current law from having jurisdiction over his actions. Politicians may object but the courts would not interfere. But he broke with the norms of the conventions to the extent the court felt that the:-

‘Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.’

Why did the court think this was relevant?  Because they felt the Prime Minister had broken with customs that had the character of law. ie our customs known as constitutional conventions. Of course the court has for centuries had the right and duty to set limits on the prerogative where it purports to breach statute (eg in Entick v Carrington (1765) or Fire Brigades Union case (R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513  ) and as well as statute, common law court precedent. But the court also ruled this applied when Government went beyond legal custom and convention.

What are the force of constitutional conventions?

As Professor David Feldman wrote in the Cambridge Law Journal:

‘Conventions of the constitution are means of holding in check the tension between the formal, legal appearance of the constitution and the current practice. By framing the practices in terms of rules of the political elite and theorizing their relationship to legal rules, both the political elites and the legal elites can recognise and accommodate to each other the competing demands of law and politics.

They reflect observed regularities of behaviour: a practice or tradition is established as a result of conflict over visions of the proper relationship between institutions, and acquires authority through tradition, acceptance and practice.’

They have over time legitimate authority and the force of law enforced by judicial review. The role of the court is to prevent institutions from acting improperly by providing ways (Judicial Review) of ensuring that they adhere to their powers and duties, or are held accountable for any lapse. That includes number 10.

Why does the law apply to the Royal prerogative ? Why do Judges have jurisdiction? Firstly, in my view without wishing to be trite, because 11 Justices of the Supreme Court say they do!  I trust them because of their collective years of legal experience and knowledge. But they set out convincing reasons in their judgement.  They said:

The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty’

In the first Miller case at Para 141 and with reference to a Canadian authority (Re Resolution to Amend the Constitution [1981] ) the court stated that they had no role in dealing with breaches of convention.  But in the present Miller case that was not the issue because the Government went beyond convention in the manner in which it prorogued Parliament effectively preventing Parliament from doing its job of scrutiny at a crucial time.  The court said:

‘it is well established, and is accepted by counsel for the Prime Minister, that the courts can rule on the extent of prerogative powers.

The constitutionalist writer Dicey recognised the coercive force of the law, and explained the binding nature of conventions by arguing that a breach of convention would inevitably result in a breach of law.  (Dicey, Introduction to the Study of the Law of the Constitution (1982), p.297.)

The point is that conventions are not so elastic that they know no bounds at all. That would give unfettered power to a government at the expense of Parliamentary democracy.

This is not new law. This is recognition that in a Parliamentary democracy there is a boundary between the prerogatives on the one hand and the operation of the constitutional principles of the sovereignty of Parliament and responsible government on the other hand. If number 10 had reasonably stayed within the bounds of convention the courts may not have intervened.

The Supreme Court adjudicated because the Government acted quite beyond the limits of parliamentary convention and the court therefore has the power to intervene. This is only ‘new’ in the sense that the Government exceptionally went beyond the conventional bounds and for unlawful reasons. It was the misconduct that was new, not the Courts power to intervene.

It was misconduct and that proved fatal in the eyes of the Supreme Court I would suggest. Having a established that the Government clearly went beyond Parliamentary convention this opened the way for the Supreme Court to intervene because there are legal limits to the power of Government. Because they went beyond convention the Government lost the protection that acting within the convention provided. Legal conventions have their limits and by going beyond them the Prime Minister acted unlawfully.

The courts have always had jurisdiction over governments and their departments when they act unreasonably or irrationally. In this instance the court protected Parliamentary democracy against unreasonable and irrational behaviour of the government that went beyond convention.

In essence that is why the Supreme Court did not establish new law. Traditionally the courts do not adjudicate on Parliamentary conventions because this is a matter of politics. But they do adjudicate on the limits of the Royal prerogative and where governmental behaviour goes beyond convention that is a matter of law only which the court can rule upon.

Yes of course the Government, like the Stuart kings before them would eventually have to recall parliament for funding but in the meantime they could do many things without the democratic scrutiny of Parliament. The court recognised that the impact of prorogation would have that effect. They refer to the case of Bobb v Manning [2006] UKPC 22, where the court said:

 “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”.

Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees.

The Supreme Court said the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model.

The court made this simple factual point. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks.

It also correctly observed that,

‘given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.’

The Prime Minister ran away from the scrutiny of the House of Commons. That was a breach of normal custom or convention. It breached the principle set out in the ‘case of proclamations’ followed and recognised by the courts.

Prorogation is governed by convention, by proroguing for much longer than convention, as described by the evidence of the former Prime Minister John Major, The Prime Minister breached the convention, and in doing so without reasonable justification took him into areas where the power to prorogue is subject to judicial oversight. By going beyond normal custom and convention as a matter of law this enabled the Supreme Court to fulfil their established duty to rule in the limits of the Royal prerogative.

The power to prorogue is not a convention. It is a legal power. That HM the Queen normally accepts the advice of the Prime Minister is a convention, but the legal power is not. That legal power has to be operated within limits. The court can therefore examine the limits of that power as exercised. The Prime Minister did not act lawfully the Court ruled.

Not new law but established law.

Not a matter of politics but a matter of law.

The court has often intervened in relation to setting the limits of the royal prerogative in cases which have a “political hew”.

Now of course you will not find a judicial precedent exactly the same as the facts referred to in the ‘case of proclamations’ or subsequent rulings by the courts. There is a simple reason for that. Each case and specifically the facts the judgement are founded upon are always different. But the principles remain the same. The Court has to apply them to the facts before it. That the circumstances are unique does not alter the established guiding principles the courts have to apply to those changing facts.

They held the Government acted unlawfully in its exercise of its power to prorogue Parliament. They held that a ‘prerogative power is only effective to the extent that it is recognised by the common law: as was said in the Case of Proclamations,

“the King hath no prerogative, but that which the law of the land allows him”.

To dismiss this reference to the Proclamation as the Supreme court as a ‘cut and Paste’ job is, with respect, quite absurd. It was a vital document of judgment force that had a major impact on the later Bill of Rights 1689.

If they had not so ruled they could have allowed any future Government with non-democratic instincts to simply impose direct rule for critical periods of time whilst it manipulated politics, international relations and all manner of things in our lives without the consent and scrutiny of our elected Parliament.

It has been necessary in this piece to address the issue of Parliamentary conventions simply to establish that when the Prime Minister broke them he opened up the Supreme Court to intervene.

It is however a narrow escape for parliamentary democracy. Surely we do need an enquiry commission or speakers conference to delineate the place of some conventions in our system? There is an inherent ambiguity in describing a convention as a rule or a law without allowing scrutiny of the courts in the defence of Parliamentary democracy. The fact that the Prime Minister broke with Convention to take him within the bounds of the courts intervention should not obscure this issue with our constitution and it needs to be addressed.

I wish to conclude with a word in defence of the Supreme Court. They are appointed based upon their legal reputations not due to their politics. (They are not elected at all). They are independent and a vital bulwark of democracy. They replaced the House of Lords Judicial Committee which arguably might have been said to be subject to more suspicion of political interference.

For the United Kingdom to work successfully, there must be a commitment to peaceful methods of disputes. That requires all of us to accept, that conflicts must be worked out through a combination of political and legal processes and that when a court happens to rule against a particular ruling political party that we remember the same judgement may one day be utilised either for or against a party we may or may not support.

I believe we have the best judicial system in the world. It is wrong to attack the Judges because in a highly political case they apply the law as that does not mean they have acted ‘politically’. They have acted upon and applied their Judgement according to their judicial oath of office to be independent and impartial. Constant attacks upon the Judiciary diminishes our country in the eyes of all. It is dangerous.

 

Robin Murray

 

26th September 2019

 

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Together lawyers and appropriate adults can dramatically increase access to justice in police stations.

Together lawyers and appropriate adults can dramatically increase access to justice in police stations.

As they say on reality TV shows such as X factor “I have been on something of a journey”. Without any substantial justification particularly, I have recently been a little disparaging about the role of appropriate adults. This was not at all fair or reasonable. Not least because my experience of many appropriate adults has been positive. The trouble is it is the negative experiences that one tends to remember more, such as picking up a case where the appropriate adult has failed to call in a lawyer. Mostly this occurs with non trained appropriate adult but not exclusively. Some of this rests in our the hands to report poor practice wherever we find it. For the moment however I wish to come directly to the point of this article.

It is my belief that neither the profession nor all appropriate adults are aware of the opportunities provided by an extremely useful provision in the PACE codes. I am not shy are criticising the Home Office where appropriate but on this occasion I have to say that I thoroughly approve of what they have done in drafting the following section of code C:-

PACE CODE C. 6.5 A

In the case of a person who is a juvenile or is vulnerable, an appropriate adult should consider whether legal advice from a solicitor is required. If such a detained person wants to exercise the right to legal advice, the appropriate action should be taken and should not be delayed until the appropriate adult arrives. If the person indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the person and must be so informed. In this case, action to secure the provision of advice if so requested by the appropriate adult shall be taken without delay in the same way as when requested by the person. However, the person cannot be forced to see the solicitor if they are adamant that they do not wish to do so.

So how can this provision help with increasing access to justice?

In my view the potential benefits of focusing on this section of PACE are obvious. I do not think that vulnerable clients are always the best judge of what is in their own interests. After all that is why the law provides appropriate adults and the right to legal advice. The provision of legal representation in the police station should be automatic and mandatory in my view in the case of any vulnerable suspect. But that is not the case now.

The problem is that legal representation can be declined. But on the other hand the provision of appropriate adults is mandatory for police station investigations. This cannot be declined. If only appropriate adults (AA’s) could have a significant legal role impacting upon the provision of legal advice! Does such a possibility exist? Read PACE CODE C. 6.5 A cited above again. The key to increasing legal representation in the police station is staring us in the face!

I am not going provide to a full description of the role of appropriate adults but very good guidance quite beyond that provided in the PACE codes can be found on the excellent National Appropriate Adult Network (NAAN) web site which I commend to all of you:-

https://www.appropriateadult.org.uk/index.php/national-standards

You will see that it deals with how trained appropriate adults (non-familial) should deal with the issue of legal advice and representation. It urges appropriate adults to consider ‘requiring a solicitor to attend where they believe it to be in the best interests of a vulnerable suspect’.

The director of NAAN the able Chris Bath recently told me this: “When discussing this (e.g. in training) I have always asked someone to give me an example of circumstances in which they could be confident that it was NOT in the best interests of a vulnerable suspect (or any suspect for that matter) not to have legal advice. I’m still waiting

Therefore the default position of AA’s is to persuade vulnerable suspects to access legal advice. An indication of this commitment and what is expected of local AA scheme training is perhaps the fact that the term ‘legal advice’ appears 68 times in the latest version of the National Training Pack, available to all NAAN members.

What are the implications for lawyers? It may well be that we could be called to attend the police station to establish early contact with the vulnerable client at the behest of the AA. I accept given the present fixed fee structure the payment we receive will be eroded if the police are not ready to interview forthwith post consultation. On the other hand for the sake of a short consultation and perhaps some disruption to the day (Including extra mileage), the client will receive the early reassurance and legal advice he needs and the solicitor will secure a client he might not otherwise have encountered.

In addition to this although the AA can insist on police calling for a lawyer they would not be insisting that the lawyer comes immediately. That is a matter for the lawyer. The power of the AA under 6.5A is separate to the issue of lawyers turning up quickly. That is something I touch upon later.

There is a further risk that the client will refuse to see you on arrival or,if he does see you, decline legal representation not withstanding that initial consultation. However I would bet a tidy sum upon most lawyers having the skills, once in personal contact with the suspect, to be able to persuade them to retain their services. Furthermore, although for the time being the services may have been declined, the trip is not an altogether a costly and wasted experience. Firstly NAAN confirm AAs report that almost all suspects who have originally waived legal advice choose to speak to the legal rep once the AA’s request has brought them to the station. There should be no fear in practice that it will be a wasted trip.

Secondly,even in the unlikely event the lawyer’s services are declined the LAA have agreed, when NAAN engaged with the LAA on this in 2013, that the attending firm would be paid even if they attended the police station and offered advice to a vulnerable suspect at the request of the AA, where it was not taken up by suspect. Similar to what happens on an abortive visit.see: https://www.appropriateadult.org.uk/index.php/policy/legal-advice. See also Criminal Bills Assessment Manual paragraph 5.11.

Further, in relation to ‘own client’ contract work, appropriate adults were, for the first time, included explicitly in the 2015 Own Client Crime Contract Specification (paragraphs 4.26(c), 8.10(b) and 8.20(b)) as being able to instruct a solicitor on behalf of a child (including 17 year olds) or ‘protected party’ (someone who lacks capacity to conduct proceedings in accordance with the Mental Capacity Act 2005).

So the AA guidelines are clear. Trained AAs have adopted a default position to require the attendance of a lawyer for a vulnerable client and in effect, under PACE CODE C. 6.5 A, to at least temporarily, override the vulnerable clients initial refusal of legal advice if they feel it in the interest of the client to do so. Which most will so conclude because NAAN’s national guidance makes it very clear that part of the role of the AA is ‘requiring a solicitor to attend where they believe it to be in the best interests of a vulnerable suspect’ and as my quote from the NAAN national Director Chris Bath confirms it is almost impossible to envisage when legal advice would not so be in the clients best interests.

And yet sometimes I hear of lawyers reporting experience of some trained AA’s not following these guidelines. Or even worse actively discouraging legal advice along the lines of ‘you don’t need a solicitor – just tell the truth’. (reversing the burden of proof). It may be these AA’s are not among the 75% membership of NAAN. But one thing that is quite clear is that this departure from national AA standards should be reported to the relevant provider organisation. This would be welcomed as a contribution to maintenance of good AA standards. Many providers have to tender for contracts to provide AA services. They will not wish their reputation to be tarnished by rogue appropriate adults who are incompetent or not acting in the best interest of the suspect. Most of these organisations affiliate to NAAN.

There are also some lawyers who are wary of appropriate adults because of the lack of client privilege attached to their role. See A Local Authority v. B [2008] EWHC 1017 (Fam). (Privilege not extended to AAs in all circumstances).

There are a number of points I wish to make in relation to that.

1. NAAN National guidelines remind all AAs that under PACE ‘It is not the role of the appropriate adult to give legal advice.’ Therefore it would not be appropriate to discuss the offence with the suspect because the AA simply does not have a role in advising or commenting thereon.

2. Although the risk of early contact between the AA and the client, in relation to lack of legal privilege undeniably exists unless or until privilege is extended to AAs, given the national guidelines the instance of breach of privilege becoming an issue theoretically exists but as a risk is very small indeed.

3. AA training delivered by NAAN will stress as hard as possible that an AA must not only not discuss the offence with the suspect but open their engagement with the suspect by making very clear that the suspect should say nothing about the offence due to the lack of legal privilege. No properly trained AA would discuss the offence with the client and risk being called as a witness. Not having legal privilege provides the AA with another argument as to why a lawyer is so important. They will say “don’t talk to me about it because I could be called as a witness. But you can safely discuss this with your lawyer.”

4. Balanced against that lack of legal privilege risk is the undeniable danger that many vulnerable clients face if they make the wrong choice and decline legal representation or the AA does not call in a lawyer to provide legal advice. On the ledger sheet of risk what is the greater? A theoretical risk of breach of privilege or the undeniable risk of lack of legal advice altogether?

The future.

Lawyers have at times been rather dismissive of the role of appropriate adults, partly because with the lawyer present in the interview the AA will be seen to have very little to contribute. What that undeniable and commonplace view ignores is the work the appropriate adult has potentially done prior to that interview. Quietly, out of sight, but often skilfully in providing reassurance, support and information, the cumulative effect of which may well have contributed to the smooth running of the interview – with a calmer more reassured vulnerable suspect – who may be easier to represent for the lawyer as a consequence of that work.

Also and worthy of note is that AAs, unlike lawyers do at least receive some basic training in dealing with issues such as autism ADHD, bipolar brain damage etc as part of the core national training provided by NAAN including training videos some with a virtual reality experience plus the input of academics, the provision of other local resources and input from specialists.

We also should not overlook the fact that under pressure of work and fixed fees when lawyers rush off to the next job or work they have to do, the AA is there dealing with post interview matters possibly long after we have left.

In my journey to understand more of the role and issues facing appropriate adults I have reached the conclusion that a more collaborative relationship is desirable between lawyers and appropriate adults (within the bounds of our different roles and rules relating to legal privilege).

For example I see no reason why there should not be early contact between AAs and lawyers to liaise upon attendance times for the interview and consultation beforehand. This is often a bone of contention and early communication would help the AA explain to the vulnerable suspect that the delay is not the fault of the lawyer but a fact of the police investigation taking time prior to interview. This communication would counteract any false information being supplied by the police to the suspect (in breach of PACE) blaming the lawyer unfairly for delay.

It would also be useful for early communication between the AA and the lawyer, particularly in relation to PACE CODE C. 6.5 A, where the AA has taken the initiative in pursuant to his right to insist upon the attendance of the lawyer- for the purpose of discussing and arranging legal representation with the client.

I think when the penny drops with the profession there will be a desire to reach out to local appropriate adult schemes to discuss how this better communication can be achieved and to encourage the early call out of lawyers even where the suspect has initially declined legal advice. We could address local meetings and forge links that will ensure greater cooperation.

If we do this we will increase greater access to justice and also at a time of falling volume increase the sustainability all legal aid practices. But above all vulnerable clients will receive the legal advice they need.

Lastly I wish to say something about non-trained appropriate adults. I think there is an argument for these to be phased out in favour of trained appropriate adults, but not so they are excluded from attending interviews where appropriate (obviously not when they are victims or closely related thereto). I think the Home Office should consider utilising trained appropriate adults to give advice to members of the family about what happens in the police station and possibly to enlist their help in persuading a vulnerable suspect to have legal advice.

So having engaged with appropriate adults over the last few days I have reconsidered the profession’s relationship with them and feel we and our clients have much to gain from closer cooperation. Trained appropriate adults can be invaluable in ensuring our presence at the police station and increased liaison and cooperation will benefit vulnerable suspects AAs and the legal profession.

I would be very pleased to hear views from all concerned.

Robin Murray

Saturday 22nd of June 2019.

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

Sentencing reform should not be a Trojan horse to destroy access to Justice.

The Lord Chancellor is suggesting sentencing reforms that have widespread implications for society, magistrates courts and legal profession.

See https://www.independent.co.uk/news/uk/home-news/prison-sentences-jail-short-six-months-abolished-david-gauke-justice-overpopulation-rory-stewart-a8784276.html?amp

The proposed evolution or restriction of the courts sentencing powers to impose short-term sentences of below six months in the magistrates court is not something we can oppose as a profession without an allegation of hypocrisy bearing in mind we frequently argue that short-term prison sentences do not do anyone any good because of the opportunity to rehabilitate during those sentences is limited if not non-existent.

The excellent response by the Magistrates Association has also called for a pause in implementation until proper investment in non-custodial robust alternatives are available.

https://www.magistrates-association.org.uk/news/magistrates-association-calls-reduction-use-prison-sentences-under-eight-weeks

Nevertheless there is a real threat to the practitioners of crime if the government missuse what might be a useful social reform as a way to wipe out access to justice

The grant of legal aid should not just be determined on whether a prison sentence is involved. Damage to reputation is important. Plus it is not just or justice for people to be unrepresented when facing CPS lawyers. They will still face onerous restrictions and penalties if convicted.

Irrespective of the risk of custody people should not face sanctions without being able to mount a defence or have decent mitigation advanced. I think the profession should campaign to prevent further erosion of access to justice. It’s NOT all about the risk of a custodial sentence – it’s about justice.

Least of all can a legal aid lawyer argue in favour of short-term prison sentences. Not a good look, appearing potentially self interested and also morally wrong. But we do need a serious campaign to ensure legal aid is more widely available irrespective of risk of custody. We need to make the case.

What we do not want is sly government tactics that simply try to reduce legal aid at the expense of justice using a changing sentencing policy as a mechanism for wiping out legal aid. This will need a very robust response at a political level.

Although the profession should never argue for short-term prison sentences there is a serious risk that the legal profession will be wiped out almost completely so far as criminal practitioners are concerned if the changes are utilised to reduce access to justice.

The collapse of legal representation due to a threat to legal aid will have a knock-on effect in terms of cost to the CJS with thousands of people clogging up the courts unrepresented with consequential delay and expense.

Where is the disincentive to avoid loss of credit by pleading not guilty?

Legal aid lawyers give robust advice pointing out that a dubious not guilty plea could have serious sentencing consequences and tip the balance in favour of a custodial sentence.

If we are not there that advice and consequential beneficial impact on cost savings will be removed.

The work criminal practitioners do in the magistrates courts is the foundation for their continued work on extremely serious cases in the Crown Court and the work of the bar and solicitor higher advocates there. If these foundations crumble there will be a serious crisis at all levels which may not be able to be resolved in keeping with our fine traditions of criminal justice. The system is already stretched to breaking point due to the collapse in volume of work in the courts.

I think the CLSA, LCCSA, the CBA plus the Law Society should prepare a very robust statement warning that the reforms to sentencing should not be a Trojan horse for the reduction of access to justice. I think this is urgent actually because we need reassurance.

After years of repeated cuts neither solicitors firms nor the bar can withstand any reduction in volume especially when so few cases are now charged and brought before the courts.

This is an existential crisis which quite frankly could wipe out the profession. Sentencing reform must not be a Trojan horse to attack legal aid and access to justice.

Robin Murray

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

06/06/19

BLADES – NO GLORY

When the Prime Minister declaimed that there was no correlation between –  the cuts in police numbers, which she began under her watch as Home Secretary and – the appalling increase in knife crime, whatever remaining tattered credibility she had finally evaporated. The whole nation knew instinctively that reducing police numbers by nearly 22,000 could not but have had an impact.

I accept the police have also have a political agenda (non-party) but when Commissioner Cressida Dick of the metropolitan police said there was ‘obviously a link between violent crime and falling police numbers’ I am afraid to say I sensed the public collectively agreed with the Commissioner and not the PM. Especially as the Commissioner was supported by so many distinguished colleagues and former colleagues. Despite what was said by Mr Gove in the referendum campaign sometimes it does pay to listen to experts.

Is the political row over knife crime overblown?

I don’t think so because looking at the evidence there really is a knife crime crisis. I do not refer to over excitable newspaper coverage but to the Office of National statistics figures https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/thenatureofviolentcrimeinenglandandwales/yearendingmarch2018 and this research briefing summary (SN04304) lodged in the House of Commons library. https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN04304

 

What do they tell us?

  • Offences involving a knife or a sharp object fell between 2010/11 and 2013/14 before rising over the next three years. In year ending March 2018, there were around 40,100 offences involving a sharp instrument. This was 16% higher than in 2016/17 and 23% higher than in 2010/11. Data for the year ending June shows an increase from 35,100 in 2017 to 39,300 offences 2018.

  • In London the number of this type of offence decreased to 9,700 in 2014/15 before rising to around 14,700 in 2017/18 – the highest number over the last 10 years. Knife crime with injury rose from 3,500 offences in 2008/09 to 4,700 in 2017/18, an increase of 34%.

  • Selected knife related offences in Kent increased from 12 per 100,000 population in 2010/11 to 43 in 2017/18 (+123%). This was the highest proportional increase over the period.

  • In the year ending March 2018, there were around 40,100 (selected) offences involving a knife or sharp instrument in England and Wales. This is the highest number in the eight-year series (from year ending March 2011)

  • There were 5,053 finished NHS consultant episodes (FCE) recorded in English hospitals in 2017/18 due to assault by a sharp object. This was an increase of 14% compared to 2016/17 and 39% higher than in 2014/15.

  • Findings from the Crime survey (CSEW) for the year ending March 2016 indicate that 6.2 % of 10 – 15 year olds and 4.2% of 16 – 29 year olds knew someone who carried a knife for their own protection.

This is therefore, not an irrational fit of national panic as the statistics seemingly prove justification for our concerns, after seeing the horrific and tragic recent headlines about young lives cut short by knife crime. We are entitled to fear for our own and other people’s children and Grandchildren. But of course most people will not be touched by these problems in reality but psychologically they have an impact upon our lives.

What are the solutions?  Before going there I wish to address the view I have heard from politicians and journalist of a certain political slant and callers to various phone in programs. That is that we need a renewed and tougher sentencing approach.  In other words more custodial sentences. That is completely the wrong and I suggest, a demonstrably failed approach. Why do I say that?

For knife crimes the proportion of proven offenders sentenced to custody notably increased post 2008.  In response to the high prevalence of knife crime, a Court of Appeal judgement in May 2008 (Povey) said that magistrates should normally sentence those convicted of knife crime possession offences at the top end of the range. The effect of this judgement can be seen in the increased use of custody since the 3rd Quarter 2008.

The Criminal Justice and Courts Act 2015 introduced provision for a minimum custodial sentence (of six months for those aged 18 or over) for repeat offenders.

Custodial sentencing had stabilised at around 10% until 2008 when it increased to 18%. In 2017, the proportion of proven offenders sentenced to custody stood at 30%.

Plus the average custodial sentence length (ACSL) has increased since 1995. There was a more marked increase from 2008. In 2016 the ACSL exceeded 6.5 months for the first time.

As these figures demonstrate the recent growth in knife crime has increased exponentially alongside increasing severity of sentencing. The more custodial sentences are imposed the greater the recent increase in knife crime.

So why invest in failure? The link between poverty and knife crime does not excuse knife crime but is hardly coincidental. All the evidence suggests for example that drug gangs exploit the poor and vulnerable young and drag them into a sordid world of ‘get rich quick’ drug profits or a ‘cut’ deeply attractive to those who feel they have nothing to lose. Hence the growth ‘county lines’ trafficking etc.

Some of the schools I talk to for my firm (Tuckers Solicitors), in our outreach program, are terrified of their pupils being lured into county lines style or other evil operations.  And of course it can lead to gang wars and death or injury. Sadly the risk of custody does not seem to deter them as I demonstrated above.

Now I appreciate there is not an immediate and quick solution to poverty or to family breakdown. There are longer term projects that need to be addressed. But if you talk to children or teenagers all of them complain about the absence of funding for youth projects within their communities. The old saying the ‘devil makes work for idle hands’ has some truth to it.

Austerity has a price to it in terms of damage to social cohesion and now deaths on our streets. As the statistics tend to show I suggest,  locking young people up makes them likely to become involved with gangs in custody and reinforces pro criminal attitudes. It is doomed to failure. It is failing.

An amendment to the Offensive Weapons Bill, which is currently before parliament, proposes a new Knife Crime Prevention Order, or a ‘Knife Asbo’ as it is already being dubbed.

Many people, including the Magistrates’ Association, have expressed doubts as to whether these new orders will do anything to address the complex problems at the root of knife crime . That they are not a radical liberal organisation uncaring about crime and punishment. Perhaps they should be listened to.

See: https://www.magistrates-association.org.uk/news/ma-statement-knife-crime-prevention-orders

So obviously long-term we must look at the social deprivation which is a breeding ground for knife crime. However this is not a liberal excuse because knife crime has to be tackled.

Knife crime will not be reduced by locking people up with other criminals but by the increased risk of detection which brings us back to police numbers. The cuts to the criminal justice system across the board have proved disastrous. From police numbers to Graylings probation privatisation and his cuts to legal aid.

We must therefore on an emergency basis increase police numbers to target knife crime specifically but also the drug culture that lies behind it quite often. That means more policeman on the streets but also in intelligence gathering which is part and parcel of the same thing. The loss of community policing which was extremely successful has now fallen foul of austerity and must be restored in our local communities to give reassurance to the public and to provide such valuable intelligence.

In the meantime we do need to bring back stop and search but in a different way to that employed before. We cannot have the police force behaving like an army of occupation in local communities causing tension amongst ethnic groups because of the insensitive way stop and search has been handled in the past. We cannot go back to that. All stop and search must be recorded by body worn camera, and must be statistically recorded in terms of ethnicity and age.

There should be intense training of police officers in dealing with the approach to the public and in particular to young people and those of all from ethnic minorities. We do not want riots or social breakdown. We want to build trust between the police and the public. There should be a pattern of words which should be expressed and recorded in a firm but sympathetic manner explaining that stop and search is for the benefit of the community and young people in particular and requesting help from the person taking part in the search. It should be explained it is for their benefit because of the prevalence of knife crime.

There should be investment in the provision of metal detector “wands “which are far more useful than Tasers in my view in terms of expenditure. These will not neccesarily result in a full physical search.

Anyone who refuses to take part may then be said to have provided grounds for suspicion justifying a physical as opposed to a simply metal detector search.

These measures should not be routine but should actually be targeted in particular areas under section 60 Criminal Justice and Public Order Act 1994 where there have been a number of reports of knife crimes. This legislation should be amended to permit the operation to last longer than 48 hours if there is a demonstrable need in that locality. Possibly for a periodically renewable period of say up to 6 months. The legislation should also be amended to provide for consultation with local residents before such authority is given.

We need to make young people feel that searching is to make them feel safe and that carrying a knife for their own protection is unnecessary.

I’m conscious that stop and search is controversial but that is because of the way in the past it has been carried out. If it is carried out sensitively and with community support it will prevent crime and criminalise less young people.

This is a preventative not a punitive measure and in due course hopefully will be used less as we tackle successfully the present crisis.

In the meantime urgent steps should be taken to follow the example of Glasgow where they have brought knife related crime down to a new low by engagement in the local community treating it as a health or holistic problem that is being addressed without savage custodial penalties.

In 2004/05 there were 137 homicides (which include murder and culpable homicide figures) in Scotland – in Glasgow, there were 40 cases alone, double the national rate.

By 2016/17 the number had more than halved to 62.

Last year this had reduced by a further three to 59. A sharp instrument was the main method of killing for 34 (58%) of those cases and all but one of them involved a knife.

This homicide figure was the joint lowest number of recorded homicide cases for a single 12-month period since 1976. https://www.bbc.co.uk/news/uk-scotland-45572691

How did they do this?

  • Scotland’s Violence Reduction Unit (VRU) was set up to stem the tide of knife crime which saw Glasgow become Europe’s murder capital. Its key message was that gang-related stabbings and slashing were not just a policing issue but a public health issue. The unit’s motto was a simple one: “Violence is preventable, not inevitable.”

  • Over the years the VRU has worked closely with partners in the NHS, education and social work. It has stressed the importance of positive role models and its projects have been shaped by statistics.

  • One of its early projects involved sending senior doctors into schools to share their harrowing experiences. MAV also produced a 15-minute film, called Your Choice, and devised lesson plans to help stimulate a debate. The organisation encouraged knife-crime victims to co-operate with the police as research showed many attacks went unreported.

  • One of the VRU’s key objectives is to offer young people an alternative path, adventure and leadership training schemes with former gang members.

  • The VRU was also influenced by LA-based Homeboy Industries, which offers gang members employment in its cafes.

  • Workers are paired with a mentor who can help them master everything from basic employment skills, like turning up on time, through to debt management and relationship issues

 

A blitz on knife crime areas with outreach programs as they have in Glasgow will bring knife crime down across the UK. There will always be those who will deserve a custodial sentence but that is not the way to stem knife crime despite the siren  cries of certain politicians and commentators.  We need to be far more imaginative than that and invest in models of success as they have in Glasgow and not in discredited models of savagery though our penal system which has been tried, tested and spectacularly failed. Let us try something that works.

Something I think that does not work is that since writing this original article the government has decided to investigate the possibility of making professionals such as teachers and social workers et cetera responsible for failing to notify the authorities if there is a risk of knife crime amongst young people

See https://www.theguardian.com/uk-news/2019/apr/01/professionals-may-have-to-report-children-feared-injured-by-knives

‘Doctors, nurses and teachers would be required by law to report children feared to have been caught up in a life of violence – and held accountable if they failed to do so’.

It will be interesting to see what sanctions they are against professionals.

Obviously it will be necessary to look at the precise language which identifies the responsibility of professionals to report young people “caught up in knife crime“but it troubles me that anyone can be retrospectively held accountable for failure to notify in advance a risk of a random and sudden knife offence.

How does one define “caught up in knife crime “? I feel sorry for e.g. a busy teacher in a testing school environment being retrospectively held accountable even perhaps for something which happened outside of school premises.The wording would have to be very clear.

And what does trouble me is this may be motivated as a way of deflecting attention from HMG inability to except responsibility for austerity cuts to the police and child services including youth clubs etc which are the real answer not turning teachers and doctors into grasses.

But I do not wish to be irresponsible. These are life and death matters – literally. Any evidence-based proposal would be welcome and worth trying. My suspicion is that this is populist political headline chasing at the expense of professionals. I may be proved wrong and I hope so.

 

Robin Murray

 

6th March 2019.

Updated 4th April 2019

 

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.

 

 

Violence and death threats . Legal Aid Lawyers are put at risk by Media lies.

I heard rather than saw the bloodied fist “swish” past my head as it smashed into the cell wall. I had just broken the news to the client that the prosecution were opposing bail. What then followed was a diverting few minutes where the client ran around the cell, rather like a motorbike rider in a fairground ‘ Wall of Death‘ screaming and smashing his fist repeatedly into the wall leaving bloody imprints. At one point I watched transfixed as a fleck of blood landed on my shirt cuff that covered my wrist on the arm desperately ringing the emergency bell.

No one came.

I genuinely thought in a moment I would be attacked with consequences that might have been unforeseen when I entered the cell. So I decided to stand up and confront the raging client. As he came around at the cell again I stood in front of him pointing and shouted

“Shut up and sit down“.

“Why the fuck should I“? He screamed.

With as much force as I could muster I replied

“Because, Because, Because, I am absolutely terrified”

“Are you?” He replied. He looked genuinely shocked.

“Yes” I replied in turn, “I am really scared”. (true)

But “why” he asked? ”You’re my fucking solicitor aren’t you. Its those other bastards I hate not you. I’m not going to hurt you. Why do you think that?”

“Oh I don’t know” I responded. “It might have something to do with the running round the cell thing, smashing your fists into the walls and the sight of the blood. Perhaps I’m being over sensitive”?

He said “I think you are mate I ain’t gonna hit you am I? You’re on my side ain’t you.”

“Of course. I’m so glad you see it that way shall we sit down and have a chat.”

I regarded this as the triumph of extreme cowardice over extreme violence.

We became friends for that limited period. I managed to get him bail subject to a bail hostel being available. He was released from prison but didn’t turn up at the bail hostel because he thought that I was amiss in not personally arranging a taxi to collect him from the prison gates. That was the end of the friendship.

The next time I was in danger was at a police station. I was introduced to the client and went through the usual explanations including the recently introduced new caution, with its implications to the right to silence due to the inference of guilt. The client was no stranger to the police but he didn’t grasp my purpose in explaining the caution. He said

“I always go no comment mate let’s get on with it“. I tried to explain that I needed to know his response to the allegation so I could advise whether a no comment interview was sensible.

His response was

“You are fucking useless and you’re sacked”.

He then got up opened the door and walked down the corridor towards the custody desk. Given obvious signs of drug withdrawal the comment I made to his retreating back, on reflection showed dubious judgement on my part

“Don’t forget to claim your money back from the Charm SchooL” (such wit I thought).

The next thing that happened is that he turned on his heels and ran very quickly towards me clenching his teeth and with his fists raised. I stood motionless because I sensed he would probably defeat me in combat. I dare not raise my arms in self defence as I was convinced this would result in immediate pain to my head. So I just stood there looking at him and trying not to look frightened. It was for a few seconds but it seemed like an hour. My trying to be cool (always a mistake in my case) was rather spoiled by the outbreak of perspiration on my head which cause my spectacles to slowly drift down my nose and fall onto the floor.

He just looked at me with utter contempt and said “you are a ‘C**T” and walked away.

Yes I thought. He had a point.

I can’t use that word ‘c**t’ let alone type it ever since I blurted out that word at the age of nine to my parents about the then Prime Minister, to whose image my father was shouting at on TV. (I having heard that word from my very cool Australian friend Sandy). My mother then explained I should not use the word as it was ‘part of a Lady’s anatomy that is completely unmentionable’. That was all the sex education I ever received really. Mysteriously I did have children – somehow. But that is a digression.

The point of my two anecdotes is simply this. They are not exceptional. It is the commonplace experience of many lawyers who have now days felt threatened and some indeed assaulted. No solicitor or barrister should be exposed to violence. It should be axiomatic in a civil society that it is wrong for anyone doing their job to be hurt or threatened. Be they Lawyers or anyone else in the CJS.

It is a matter of deep pride to me that Lawyers deal with dangerous people all the time and think so little of it because they know it is part of their duty to represent all sorts of different people including those with some unfortunate violent tendencies.

What is new however is the coarsening of public debate and media encouragement of such. Look at the abuse suffered by some MPs which of course led to the tragic death of Jo Cox MP. I will say no more about that here. From a legal professional point of view however there is a threat now. Or rather an accumulation or accretion of abuse towards defence lawyers which makes it apparently acceptable to imply some sort of moral blameworthiness for simply representing, as a lawyer, those whom the state prosecutes.

I represented someone in a notorious case. The details do not matter. The Detective chief superintendent pulled me into a room and asked me this “ I know you have family of your own. What I want to know is how do you sleep at night fighting so hard for someone like this man?

My response was this. “What keeps me awake at night is the thought that you may have arrested the wrong person and because I don’t do my job properly he is charged, whilst the criminal who committed this crime remains at large and commits further crimes against innocent people.” I also told him that I felt contempt for his bringing my family into our professional relationship and would he never do that again? I got up and left and went back to my client.

And that is the point. Defence lawyers are there to represent everyone in all situations. We do not choose our clients. We represent them according to ethical standards and rules. It is the job of the jury and magistrates to judge our clients should that opportunity arise following a charge. We cannot allow our personal feelings to intrude in our discharging that role. It would be dangerous to do so. We cannot as a lawyer say to someone “I thoroughly disapprove of this type of offence but please go down the road because there is a sleezy solicitor there who has no moral compass and will simply represent anyone”.

We cannot pick and choose and it would be wrong to place our personal judgement in the way of accepting a case. Apart from anything else that judgement might be wholly wrong. Although lawyers have their suspicions based upon the weight of the evidence I doubt if there is a single lawyer who has not experienced their personal views being confounded by the developent of actual evidence during the trial and discovering (perhaps to their surprise) that the client is far more innocent than the lawyer supposed.

It was with deep dismay that I found my colleague Richard Egan under assault from the Daily Mail and social media. The Secret Barrister answered these perfectly here so I won’t repeat the points. https://thesecretbarrister.com/2019/01/05/dont-let-the-jack-shepherd-stories-on-legal-aid-distract-you-from-the-governments-cynical-agenda/.

When we nervously took our 4 branch firm Robin Murray & Co into a franchise style merger with Tuckers Solicitors, Richard was one of the first to reassure me and offer the hand of friendship. It was immediately quite clear from talking to him that he was a thoroughly good lawyer and decent human being. Nothing has changed that view of him. He is brilliant. He is respected far and wide and indeed was a recipient of a Legal aid Lawyer of the Year award for, as that organisation has tweeted, ‘his fearless demolition of US govt claims that his innocent Algerian client was architect of 9/11. Richard didn’t buckle when faced with the might of the FBI’.

It was shocking to learn that he was the subject of serious threats. I was, like many, upset by this but touched by the unconditional support of the profession for Richard. He, I am sure would rather be known for his work than unpleasant threats. Which brings me to this conclusion.

All over the world lawyers are being threatened, intimidated, imprisoned, assaulted and worse for simply doing their Job. This happens now in Turkey, China, Hong Kong, Columbia, the Philippines and many other nations.

We do not want these dangers replicated here by vigilantes encouraged by reckless reporting.

No one supports free speech more than lawyers. But it is incumbent upon the national press and social media companies to report crime and legal aid responsibly. The lies in the so called popular press have consequences. The years of hostile and entirely misleading propaganda about legal aid lawyers must end. So must irresponsible comment by Politicians without reference to the full facts and background. Please stop now before the unthinkable happens.

 

Robin Murray

 

29/01/2019

 

Boring Biog
Robin Murray is a solicitor who founded Robin Murray and co on the 1st June 1988, which grew into a multi branch firm now known as the ‘Tuckers Kent Branch’ which is a combination of the might of firms of Robin Murray & Co and Kent Defence who merged as part of the nation-wide leading criminal defence firm Tuckers Solicitors.
Robin is a former winner of the Legal Aid Lawyer of the year award, plus a Kent Law Society Outstanding Achievement Award, and was nominated for Law Society Gazette Legal personality of the Year award.