Robin Murray’s address to the Young Fabian Lawyers Network and Young Legal Aid Lawyers. The Secret Barrister Book Club

I was put forward by the Secret Barrister to address this event and deal with the issues raised thereafter. This was my opening speech:

Thank you Young Fabian Lawyers and Young legal aid Lawyers for inviting me to speak and then chair this discussion on the book by ‘The secret Barrister – The law and how it is broken’.

It was said in promoting this event that I would talk about ‘my career and challenges faced by the CJS’.  I appreciate you are here to discuss the book rather than listen for too long to me but I was put forward for this gig by SB so blame SB for having to listen to me.

Some parts of my career informed my later and present radicalism/activism in the face of the growing injustice that I saw. So when I read this fine book by SB I found myself almost punching the air with recognition.  What I will try to do in a few minutes is to relate just a few aspects of my career to those problems that we all suffer from in our working lives and how in my own small way I have tried to combat this growing crisis in our CJS.  But SB has exposed these issues far more effectively than I could ever do through a superbly witty, sometimes angry and sometimes sad but always informative book that has captured the times we live in through the prism of the criminal law.

The book perhaps is a commentary or at least a reflection by SB upon the impact of neo liberal economics and austerity at a time when Ulster DUP MP’s can be bribed with tax payer’s money to the tune of £1bn but HMG cannot find money to repair the criminal justice system. They could also find cash for Justice if the will was there.

I always believed in British Justice. If anything with family in the police force I was rather impatient with criticism of the police. Often I felt such criticism was driven by those with an agenda, personal or political. But during the course of and throughout my career I would be increasingly frustrated by what appeared to be judicial genuflection towards the prosecution and the police in particular.  Things began to improve shortly after I qualified following the well-publicised miscarriage of Justice Maxwell Confait false confession case that led to the introduction of PACE and all its safeguards.

Just before PACE I had conduct, as a young trainee, of a murder case. My client was supposed to have thrown his partner out of the window from a block of flats. I begged my boss for this case as it ‘spoke to me’. The defendant says he locked his wife in as she was drunk and he didn’t want her embarrassing him in front of his friends. He said he was assaulted by the police to his body and his shirt was ripped. He was a Turkish Cypriot with poor English and we established that a written confession (pre- recording of interviews) which, by the rules at the time, was supposed to be exactly in the suspects own words was in fact written for him and an educational Psychologist reported to me that 60% of the ‘confession’ used words that were simply well beyond his vocabulary.

Anyway after some adventures involving climbing out on the window ledge after hearing the deceased had done this before at a neighbour’s house lower floor flat, and retracing the defendant’s steps with a stop watch to a friend’s house elsewhere he visited at the time of death (pin pointed by the time a TV advert went out) – we established a counter narrative and a strong alibi. That narrative was that he locked her in due to her being drunk. She attempted to repeat the climbing out down the drain pipe trick (she had black staining from the pipe on her hands, as I did when I held onto the pipe several floors up, on the window ledge) but she lost her footing. I didn’t so hence I am here today. It was probably an accident and yet the police say he confessed.

If we hadn’t noticed the language issue the confession might have stood and he could have been given a life sentence for a crime he didn’t commit. He was tried at the old Bailey. Our QC Brian Capstick invited me to help write his final speech. I nearly levitated like the Trump blimp so proud and puffed up was I. He even used some of it! As the Jury returned I looks at them intently for a sign. One of them caught my eye and smiled broadly. I thought ‘you callous bastard – finding him guilty and smiling about it’.

But I was wrong. The Old Bailey Jury found the defendant not guilty. You wonderful Jury I thought. The client cried as I nearly did – with relief. How US Lawyers and others cope with capital cases I will never know. (I hope.)

Interestingly at an Inns of Court dinner the trial Judge told my junior counsel ‘ah yes I am afraid I let that one get away from me with that acquittal’.  I have been deeply suspicious of Judges summing up for the Jury ever since. They don’t have them in the US and I don’t feel they are necessary here.

Anyway despite the Judge we secured an acquittal.  If I wasn’t hooked on criminal law before I certainly was after that case. I am still hooked. It is addictive if grossly under paid and undervalued.

But what that case taught me is that there are those in our CJS who will bend stretch and break the rules to secure a conviction.

The police in particular shocked me then as a young lawyer as I realised from that case and others they will sometimes ensure that evidence will be disclosed only where it fits their case theory. It was an eye opener. I never held naïve views again and in truth as a defence lawyer you should always be on the lookout for skulduggery. The Birmingham 6 and Guildford 4 scandalous cases reinforced that sense of caution. The need always to be conscious of the risk that there are those who would subvert justice.

For example a little which ago I casually asked a police officer why there were fewer interviews in the police station. He laughed and boasted that ‘we have found a way to get around the need for calling in you bastards – we don’t need to offer legal representation outside the police station’. I was sceptical until I looked it up. He was right. There was a loophole.

So I went to war. Together with Prof Ed Cape and Richard Atkinson my partner and chair of TLS CLC, within 6 weeks we closed that loophole because we achieved a change in the PACE Code so that (in theory at least) wherever an under caution police interview takes place whether at home or in the street the suspect must be offered legal advice. See:  https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article

Of course to ensure Justice the defence have to rely heavily upon the prosecution carrying out their duty of disclosure properly in accordance with the law. That includes under the legislation (CPIA) as you know that the prosecution must ensure service of evidence that undermines the prosecution case or points away from the defendant.

To illustrate how things can go horribly wrong let me tell you this. We have a recent case where a client was arrested and interviewed in relation to an allegation that he had breached a Non-Molestation Order in place against him.  During the police interview he raised an alibi for the date and time alleged.  He stated that he was at the particular Public House and that numerous other people were present in the public house at the time.

In spite of our client’s assertion of an alibi that could very easily have been investigated, he was simply charged and remanded to appear before the Magistrates’ Court when the CPS objected to bail and  was formally remanded into custody twice. We specifically raised in court the fact that his father, had notified us that CCTV from the Public House had been viewed by the police and this CCTV had confirmed our client’s alibi, thereby exonerating him of the offence alleged.  We supplied an e mail from the publican confirming this.

The case was discontinued after his being in prison for 2 weeks when the Crown had seen the alibi CCTV! A complaint is pending. We and our client would like to know why and how that happened. It was of course true that it could have been even more fatal for Liam Allen who was exonerated after 2 years on bail for very serious offences due to last minute disclosure thanks to the integrity of prosecuting counsel Gerry Hayes, and this brought the case shuddering to a halt due to the disclosure of social media that destroyed the prosecutions credibility.

There have always been problems with this but to be frank nothing like the problems we have experienced in recent years which in scale has altogether reach crisis proportions. Over 2 years ago something snapped.

At the CMH court ordered service of evidence by a certain date. The Client came for an appointment and was informed it could not be effective as no statements had been served. We sent 2 chasing e mails. Then with no response we wrote to the court asking them to list for a mention and copied the CPS in this. No response from CPS or court.

This is what the Clerk to the court said. ‘There was fault on both sides as of course the evidence should have been served, but the application for mention should have been made as soon as it was apparent the time for service had expired.’

Suddenly the CPS failure to serve or answer e mails and the courts failure to list this for a mention at our request was the defence fault because we should have done that immediately. This has its origins in past judicial comment but I was so angry I could barely contain myself. I ranted at the next CLSA meeting and found all the committee had similar experiences. We collectively drafted a protocol and I wrote articles and blogs and with commitee support created the CLSA disclosure survey cited repeatedly at the Justice select committee. It was a great moment when the late great Sir Henry Brooke tweeted I had done great service to Justice in that survey and accompanying written material about it. .

Things are happening now but rather too slowly. It is up to this generation of lawyers to keep up the fight and ensure there is no slippage in reform and improvement. In particular as defence lawyers we should pin the prosecution down like Gulliver on the beach with the law and CPRs. We use the law to force the courts to enforce the law.

If the court continue to fail to punish disclosure failure then we are no better than the old Soviet Union and other authoritarian systems where the law is set out in supportive codes but remain unenforced by courts deferring to State prosecutions. Donald Trump would like it but I don’t.

One of the many joys I have experienced in reading the book by SB is to see its massive impact in focusing attention on these disclosure scandals and the failure of the system to deal with them.

I have read some reviews that refers to the book as having an elitist view point of a barrister. Not enough class based analysis. Not enough from a BAME point of view. It is a matter perhaps for you to discuss. Personally I was struck by how much the author deeply empathised with the plight of ordinary people caught up in a complex CJS.

SB knows that I feel the chapter on Lay benches was rather too harsh and perhaps was written from a certain ‘barrister like’ position or point of view.  I wrote a blog at ‘Minted Law’ ‘in defence of lay benches’ in response. See: https://mintedlaw.wordpress.com/2018/04/11/in-defence-of-the-lay-bench/.  Sometimes Benches do infuriate quite recently in my case actually, when criticised for complaining too loudly in front of people over a disclosure ambush. I was unapologetic and rejected the criticism telling the Bench I will not be silenced. In court or out of it. But they are part of our democratic tradition and have been for centuries.

The answer to Lay Benches being too concentrated in certain ages or class groups is to widen the recruitment base to encompass more people from more varied backgrounds not to abandon the system.  Not all trials can or should go before a jury and those that remain should not in my view be exclusively be presided over by paid Lawyers in the pay of HMG. That is not democratic and is a dangerous concentration of power in the hands on one person. At least the decision making process is spread between 3 individuals not vested dangerously with one and lay benches are not dependent upon HMG for their position or income.

By the way the piece was enthusiastically tweeted by SB which nails the lie in a recent review that SB is too sensitive to criticism. That is simply not true if critiques are fairly delivered.

All self-respecting criminal lawyers should belong to the associations like the CBA, CLSA and LCCSA. The latter should work hard to increase mass membership by e.g. allowing subs to be paid monthly with a discount if paid up front for those that can afford it. Discounts for those who belong to young lawyer groups would be good.

I was asked to join the CLSA Committee based upon campaigning work and was honoured to serve 3 years as their VC during the most turbulent time when we faced Grayling’s attempts to remove client choice of their lawyer and competitive tendering. I called and chaired the ‘Justice for Sale’ rally which was attended by over 2000 lawyers at the Friends meeting house Euston. No one who was there will forget it and the hope it offered. An old friend wrote to me and said ’at last the profession is fighting back and as my team left the meeting and we all felt like singing.’

Well we fought and delayed it. We litigated. So did firms denied contracts and eventually the Government backed off. We saved client choice and defeated competitive tendering. Our legal aid system is not perfect but when properly funded works well. Legal aid is a right not a benefit.  The recent CBA action sends this message. Fight back or die. But together we could do so much better.

The associations should form a joint campaigning committee. (Like the allies in WW2) So that further action can be properly synchronised and coordinated in advance with military precision.  There are fundamental areas of agreement.

  • The need for more investment.
  • The need for the independent setting of legal aid rates.
  • The restoration of scope.
  • The need to improve the listing system etc.
  • I personally would support a small contribution on those convicted to be paid toward their legal aid. It will detoxify the issue in the press and draw the sting of stupid political opposition.

One thing SB has done is to help nail the myth about ‘fat cat Lawyers’ perpetrated in the right wing press and repeated parrot fashion by politicians. It is a dead parrot of an argument.

So now I will shut up so we can discuss the book. But perhaps the biggest tribute that we can pay SB is to treat the book not as an end in itself but as the touch paper that lit the fire of resistance to the destruction of legal aid, to the destruction of our CJS and to the erosion of justice that this represents.

That task began by SB in that book has just begun but is not an end destination just a launch pad.

We in the profession should and must join together and with others, to restore British justice to that rightful place where it should be – once again the finest Justice system in the world. Thank you so much for listening.

That’s quite enough from me. Let’s get on with the discussion and hear from you lovely people.

Robin Murray

17/07/18

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When Justice is under attack – allies must unite and fight back.

An exercise in confidence building is urgently needed to enable a powerful alliance to be forged between Barristers, Solicitors and others working in our beleaguered criminal Justice system. Solicitors and barristers could each cite past ‘crimes and misdemeanours’ or grievances about a failure here, and alleged betrayal there. Some of which may be true, some exaggerated and some simply unsustainable when exposed to facts. In the past actions have begun in an ad hoc unilateral way with inevitable defects exposed as they were initiated without proper planning and liaison.

History is in danger of repeating itself.  It is hardly surprising that one side or the other is left unsatisfied at what they feel is a lack of adequate support from the other or where the timing of respective action is uncoordinated leading to such failure and resentment. I was there and bear the scars of one side or the other at various levels undermining either each other or at times some lawyers even undermining their own representatives. The frustrations of leadership in being unable to reveal the truth at the time haunts me still. But the mature and sensible thing to do is to remember that for a ‘brief shining moment’ in the recent past there was a round table around which the professional representative bodies had regular strategy meetings and did work well together – until they didn’t. Let’s get back to that better time when they did.

History is not ‘bunk’ but is unhelpful at times if we dwell on it and do not move forward. Often we have our own version of the truth sincerely held in contrast to others who firmly recollect the same ‘facts’ differently. I share responsibility in responding to what I considered to be unwarranted attacks on colleagues when perhaps a self-denying ordinance would have been better. (Personal loyalty has a strong pull for me). My point here is that we need a clean slate and a fresh start with all taking a deep breath and diving in fresh waters where the past can be cleansed and a sense of renewal embraced.

In WW2 It may have been General Eisenhower who said to the joint US and UK allied headquarters staff at SHAEF  ‘I don’t care if you call someone a SOB as long as you don’t call them a Limey or Yankee SOB – If you do – you are out’.

The same spirit must from now on pervade the approach of the leaders of the profession to build cross profession trust. If you disagree with a proposal – do so on the merits not because of its originator thus giving rein to a pre-formed parochial agenda. I am sure the leaders of the profession being exceptionally bright and focused can do this if given the space by their respective constituent membership. Above all commit to no separate deal so a signal can be sent to HMG that they will not divide and conquer as we stand united, indivisible in our desire to save access to Justice for the people.

In my view the present bar action should of course be supported and extended but paused temporarily in implementation to enable the whole profession to re-group and reach out to each other. Then immediate talks should be commenced across the profession and beyond, to work out what needs to be achieved and how to effectively achieve it in the quickest possible time.  This will have to be realistic without imposing impossible demands upon each other that would be catastrophically terminal for individuals or firms. There are effective possibilities here that each side will be aware of, which can be brought to the table and also can be potentially be delivered.  (Discretion suggests public speculation on tactics is not wise)

As documented elsewhere, the expenditure on legal aid is an infinitesimal amount of the Government budget. It has fallen considerably along with volumes of crime according to all measures. This is what the independent highly respected ‘Oxford Economics’ report said:

The results show that under none of the three forecast scenarios assessed does total criminal Legal Aid expenditure increase over the next five years. Under the baseline it remains constant at around £872 million by 2021/22. Under both alternative scenarios, expenditure falls—by almost £20 million under the first scenario and by £111 million in the second if we allow both crime and prosecution rates to continue to change in line with the trend since 2010/11. In this latter case, almost three-quarters of the saving results from reduced volumes of crime higher cases—related to more serious, lower-volume, higher-cost Legal Aid work in the Crown Court.

https://www.oxfordeconomics.com/recent-releases/forecasting-criminal-legal-aid-expenditure-2017-update

In fact as we all know crime volumes are constantly falling so the base line is likely to be re-adjusted downwards. See this from HMG’s own figures Published 29 March 2018.

Workload and expenditure fell in most areas of criminal legal aid between October and December 2017 and the same period of the previous year.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/696042/legal-aid-statistics-bulletin-oct-dec-2017.pdf

So expenditure is falling but still discredited austerity drives policy at the MOJ.

The fat cat lies are no longer believed and contrary to the Ministerial mantra our expenditure was never above average in comparison with other nations according to the briefing for The House of Commons Justice Committee ‘Comparing International Criminal Justice Systems’ See https://www.nao.org.uk/wp-content/uploads/2012/03/NAO_Briefing_Comparing_International_Criminal_Justice.pdf.

We are winning the debate on access to Justice. See the recent press coverage of the crisis in legal aid and in the CJS and the sea change in comment which has lately been favourable to the cause of saving legal aid due in part to the disclosure scandal plus the impact of the Secret Barristers wonderful book ‘The Law and how it is broken’ to whom we are all so indebted.  https://www.independent.co.uk/news/uk/home-news/legal-aid-cuts-lawyers-strike-criminal-bar-association-justice-gauke-a8280226.html

Also several Parliamentary committees  reporting on the justice system have focused hard on the continuing collapse of legal aid and Justice.

See here the report of the Public accounts Committee. https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/news-parliament-2015/efficiency-criminal-justice-system-report-published-15-16/

Meg Hillier MP, Chair of the PAC, said:

An effective criminal justice system is a cornerstone of civil society but ours is at risk. Too little thought has been given to the consequences of cutbacks with the result that the system’s ability to deliver justice, together with its credibility in the eyes of the public, is under threat.”


The report concluded:

Criminal justice system “already overstretched”

The system is already overstretched and we consider that the Ministry of Justice has exhausted the scope to make more cuts without further detriment to performance.’

And the Justice select committee are shortly due to produce a report: see this evidence session where MP’s seemed visibly shocked at what Richard Miller, The Law Society head of justice, and Daniel Bonich, vice chair of the Criminal Law Solicitors’ Association said when they gave evidence regarding cuts to criminal legal aid and the impact of the long-term rates freeze on the defence profession. MPs listened to concerns over changes to the Litigators Graduated Fee Scheme (LGFS) and TLS  new data showing a looming crisis in the number of defence solicitors.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/criminal-legal-aid-evidence-17-19/

When pushed the Government can find money, for example for the DUP.

The professional bodies should unite now and campaign, reinforced by action for:

  1. Significant funding injected into both the LGFS and AGFS. (Preparation and advocacy fees)

  2. An Independent Pay Review Board with rates Index linked to inflation.

  3. Adequate funding for our dilapidated court estate.

  4. Whatever other reasonable demands should be made such as reforms to listing and criminal procedure rules to deal with the disclosure of evidence crisis.

We should treat this as a war scenario and plan with absolute care and precision. It will take time and effort from hard pressed and grossly undervalued officers of respective committees. We should then (observing the law) set out the proposals discreetly as possible to our respective members. If they sense the hard work and planning involved there is every possibility they will take confidence in that and will follow in a critical mass. You will always find some contemptible greedy or myopic people who are willing to betray colleagues but they may be marginalised by the coalition of the willing of both branches and others who will exert a pincer movement to force HMG to save the criminal justice system from the consequences of its own unjustifiable betrayal of Justice. No one, least of all those legal aid lawyers dedicated to the service of clients wants them to suffer. But without our taking a stand now generations of future citizens will be denied access to justice in any meaningful form as legal professionals drift away from criminal work and the training legacy for future lawyers and judiciary is snuffed out through neglect. Our international reputation as a skill centre of legal excellence lost for ever.

Robin Murray

3rd June 2018

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.

Exclusive to MP’s. Please collect the Best Selling book by the Secret Barrister: ‘Stories of the Law and How it is Broken’ and attend this meeting before the vote on EDM 1111.

Following Early Day Motion 1111, which concerns the government’s proposed Statutory Instrument (SI) on Criminal Legal Aid remuneration, there is a debate in the House of Commons on 8 May 2018.

We want all MPs to know more about the crisis in the criminal justice system.

On the day of the debate, Tuesday 8th May 2018, the Criminal Bar Association and Young Legal Aid Lawyers, supported by a broad coalition, comprising The Bar Council, Young Bar Committee, Criminal Law Solicitors Association and the Justice Alliance, will host a briefing event in the House of Commons:  ‘Time For Justice: The Law is Broken’ in Room 14, House of Commons Corridor between 5-6.30pm.

Angela Rafferty, Chair of the CBA and Siobhan Taylor-Ward, Vice Chair of YLAL and Justice First Fellow, will join Baroness Helena Kennedy QC; Bob Neill MP, Chair of the Justice Select Committee; Richard Burgon MP, Shadow Secretary of State for Justice and Shadow Lord Chancellor; and young legal aid lawyers to discuss the crisis in the criminal justice system.

MPs will be provided with a free copy of the best-selling book by the Secret Barrister:’ Stories of the Law and How it is Broken’, and the ‘YLAL Report on Social Mobility in a Time of Austerity.’ 

It is critical that our elected representatives have a clear understanding of the crisis the Criminal Justice System is facing.

MPs are invited to attend to collect their copies of the best seller and discuss the crisis in our criminal justice system.

We ask you to consider these points relating to our criminal Justice system in crisis:

  • The rule of law and access to justice are fundamental to a healthy and functioning democratic society.
  • Every aspect of the criminal justice system is under threat. The progress made on diversity is in grave danger, with profound consequences for public trust as the judiciary, professions and institutions cease to reflect the communities they serve
  • Every week brings news of another criminal trial collapsing due to lack of adequate resources. The disclosure debacles are just one very high profile example of the damage being done to our once great system from chronic and deliberate lack of investment.
  • In 2016 MPs were told by the Public Accounts Committee that the Criminal Justice System was at breaking point. After 20 years of successive cuts, the system is now broken.
  • In planning more cuts, Ministers are making an unequivocal commitment to underfunding the legal system, and to refusing to provide a quality of justice that the public are entitled to expect.
  • The criminal justice system is failing. The public are right to be alarmed. Action for justice is required.

From a Solicitors view point, as well as fully supporting our colleagues at the Bar, we ask you in addition to consider these few points:

So please collect and read the Secret Barristers best-selling book and the YLAL Report. Please attend the meeting. Please then vote down the legislation laid before the house threatening the viability of Counsel.

But do not leave it there. Kindly use your influence to reverse and halt unjustifiable and unsustainable cuts suffered by and faced by Solicitors as well as Counsel.

We used to have the finest legal system in the world but you can see from headlines its reputation is now in ruins at a time when the UK needs our institutions to be respected.

If underfunding and cuts drive out dedicated professionals then, by acquiescing in cuts, with respect are you not also complicit as a parliamentarian (through inertia) by failing to halt the destruction of access to justice within your local community? The consequences will be felt by you in the increase in footfall to your constituency surgery as your constituents encounter the legal advice deserts there.

We will not return. We will move on.

We were right in predicting disclosure disasters now seen regularly in the media and we are right about this.

It is almost too late but please try to save UK Justice.

Robin Murray

‘Gone with the Windrush.’ Government integrity over Data Protection alibi.

So apparently the landing card records of the Windrush children had to be destroyed to avoid a breach of the Data Protection Act: ‘Officials said disposing of documents had been the right move to make, while the Home Office said keeping them could have broken data protection laws. It added that the information had limited use.’ https://www.standard.co.uk/news/politics/government-defends-truly-shocking-decision-to-destroy-windrush-landing-cards-a3816616.html

I have been cutting a somewhat rather lonely if not downright eccentric figure on social media over the last 48 hours for questioning the veracity of this official response which has been repeated by Government to the House of Commons.  First a disclaimer, as a criminal Lawyer Data protection is not my area of expertise. But I can read legalisation and guidance provided.  So I read the Data Protection legislation both current and past including the principles and other material set out in the schedules to the Act. I can find no justification for the destruction of the Landing cards that have caused so much human suffering.  I can however find material therein that suggests how very wrong it was to destroy these records.

For example.  The Act does not set out any specific minimum or maximum periods for retaining personal data. Instead, it says that:

Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. This is the fifth data protection principle. In practice, it means that you will need to review the length of time personal data is kept. In doing so the holder must consider ‘the purpose or purposes you hold the information for in deciding whether (and for how long) to retain it’

Add to that ‘You will need to take account of any professional rules or regulatory requirements that apply’ and in considering destruction ‘if any records are not being used, you should reconsider whether they need be retained’.

How long you should keep personal data depends on the purpose for which it was obtained and its nature? If it ‘continues to be necessary’ to hold the data for one of the reasons set out in Schedules 2 and 3 of the Data Protection Act such as the ‘performance of a public function’ or compliance with employment law, then you should retain it for as long as that reason applies.

There are various legal requirements and professional guidelines about keeping certain kinds of records – such as information needed for income tax and audit purposes, or information on aspects of health and safety. If an organisation keeps personal data to comply with a requirement ‘like this’, it will not be considered to have kept the information for longer than necessary.

So let us consider this. Whistle blowers have confirmed that the landing cards were in use to check people’s history, ‘Staff, in fact, routinely used landing card information as part of their decision-making process, and saw the Windrush landing cards as a useful resource, according to information from two new Home Office whistleblowers.’ https://www.theguardian.com/uk-news/2018/apr/18/whistleblowers-contradict-no-10-over-destroyed-windrush-landing-cards

So the idea (to quote the legislation) that the ‘purpose’ of the data was not ‘necessary’ for ‘performance of a public function’ which is ‘like this’ justifying the destruction under the DPA is surely blown wholly out of the water. They were still in use.

What about the record’s historical value? As someone interested in history it struck me as a shocking act of state vandalism to destroy these records. . But please do not rely on me. This what an expert in the field says. Bendor Grosvenor, an art historian and broadcaster who served as an official advisor to the National Archives for seven years, said:

  • ‘Items of potentially historic importance were meant to be considered by the Archives’ Advisory Council on Public Records before destruction. Therefore, there should at some point have been a retention application made for the Windrush disembarkation papers.
  • The Home Office says the Windrush records were destroyed ‘under the Data Protection Act’, because departments are not supposed to keep records containing personal data for longer than that data is necessary. But this is nonsense because:
  1. The Data Protection Act relates primarily to records created post 2000.
  2. The records were still being used, and of value to the people whose information they contained.
  3. There is a clear exemption in the Act for material of historical value.
  • As UK National Archives makes clear, personal data should only be destroyed as part of the retention process, not ad hoc. There is no way the Advisory Council, or indeed anyone with half a brain, would have sanctioned the destruction of the Windrush papers. nationalarchives.gov.uk/documents/info.’

So we have a destructive act of documents which are of historical importance to us and the West Indian British community. We condemn the Taliban and ISIS for wanton destruction of historical artefacts and yet our own Government destroyed these important historical documents!

This destruction made it near impossible for the long term residents of the Windrush to prove their British identity or right to stay. The very documents they needed to escape from the legal noose of draconian bureaucratic harassment were taken from them. Hence the appalling suffering of those desperately facing detention, deportation, loss of employment, loss of benefit and denial of health care.

I would have to consult our firm’s Human Rights department but if these people have not suffered a Human right violation I would be stunnedSee: ‘Yet more stories emerged about the suffering and anxiety inflicted on members of the Windrush generation.   https://www.independent.co.uk/news/uk/politics/windrush-generation-deportation-threat-hypocrisy-launched-70th-anniversary-celebrations-immigrants-a8311161.html

Deportations surely represent a violation of Article 8, right to respect for private and family life by forcing a long-term UK resident to relocate to another country leaving their home, their family and friends?

Also, and this is exceptionally poor timing in the middle of the Commonwealth conference, if the  policy is being targeted at individuals from specific Commonwealth states this represents discrimination under Article 14 of the Human Rights Convention. https://rightsinfo.org/may-and-rudd-apologise-to-the-windrush-generation-but-did-the-state-violate-their-rights/.  So much for all the opportunities of Brexit!

I suppose we should not be surprised at the callous behaviour of the Government and its bureaucrats. In my own field of criminal law the Government is indifferent to the injustice and suffering of many thousands of people denied access to justice and believes it will escape unscathed so why should they care about a few thousand Windrush citizens of the UK?

However it would seem that the Government has mislead Parliament and the nation on the Data protection excuse and that is serious and they should be held to account.

Robin Murray

Thursday, 19 April 2018

Boring biography bit
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’, 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.
The Kent Law Society Outstanding Achievement Award citation read:‘Robin has campaigned tirelessly for years on issues concerning criminal legal aid and Access to Justice. He is the (former) Vice Chair of CSLA and his efforts have included helping to secure the right for suspects to have a lawyer present at interviews away from police stations, a vital protection for clients. Robin has appeared on local and national media, written many articles and has appeared on local and national media, written to and met MPs and Ministers, attended local and high level meetings  and  generally  ensured  the  issue  of  legal  aid  and  fair representation is raised wherever possible.  All this Robin has achieved whilst establishing and running his own busy practice in Kent’

In Defence of the Lay Bench.

You. Yes You. Don’t drink from that. This is not a Public House”. It was a London District Judge at Bexley. (A DJ – a professional not a lay magistrate). Startled I looked around to find the beer swilling/cider drinking miscreant. But there was none to find. I suddenly realised that the offender who had attracted judicial displeasure was me! I thought my goodness he must have poor eyesight as all I was clutching was a plastic bottle of Evian water. The temperature that day was sub-tropical in the court room.  Rising to my feet I explained (with an ingratiating Sir Robert Peel smile ‘as cold as the silver plate on a coffin’) “Sir I do assure you this is only water not a gin and tonic”. I waited for his courteous apology. Instead he said “I don’t care I won’t have my court treated like a saloon bar”.

It was hot. I was thirsty but I cast an eye on the bacterial laden open water jug of uncertain vintage and said “I shall put it away”. I didn’t want to have a pointless fight prior to my case being called. “What is your name? I told him. He indicated recognition. (Wanted poster- dead or alive? Death by dehydration was to be my fate). His attitude changed. He said “look I just don’t like people drinking from water bottles but it is very hot so by all means pour your water into the plastic cup”. (As opposed to directly into my mouth which of course was in his eyes the very height of court room discourteous vulgarity). I declined to do so. He insisted; “No it’s perfectly ok for you to pour into the cup”. He seemed anxious now that I should do so. By this time I would have rather keeled over dead than touch any water from any source. “No thank you” I said in my best clipped tone.

My God I thought. What is he like with other people or was it just me? I did not have long to find out. “Wait a minute” he said to the next advocate. “There is a phone ringing. – You – front row third for the left – get out. How dare you allow your phone to ring? Get out”. The hapless member of the public stood and asked ‘do you mean me? It was not my phone.” At this point the DJ screamed loudly “how dare you argue with me – get out before I call security to remove you”. The poor man did leave but as he did so he bravely said “I will go but I want you to know that it is not right that you talk to people that way”.

I wanted to cheer. So I flung off my lawyer disguise revealing the archers bodkin beneath and drew my long bow releasing the arrow between the DJs mean little eyes and shouted ‘I am Robin of Kent – and so will end all tyrants”.  

Except I didn’t. I didn’t say another word. Not after my own personal ‘Watergate’. I remember ‘bitching’ about it later but did not even make a complaint. I was happy to return to Kent where the mainly Lay Benches and our few DJs are in the main polite. I never worry about entering any of our courtrooms but sometime wonder how the local profession cope when appearing before such a man. This also has made me appreciate how easy it would become for a wholly professional judiciary to spin out of control if indulged provided they delivered on HMG stats. That is one reason why I am devoted to both Juries and also to lay Benches. Because of what could develop if we abolished these judicial but actually fundamentally democratic institutions. They represent the ‘people’s justice’.

There has been some discussion about Lay Benches and in the wonderful book by the Secret Barrister, which I urge all to read, examples have been quoted of quite inappropriate things Lay Magistrates say when for example announcing reasons. That is why we have Legal advisors to guide them. But these are just examples. Some may stick in the mind so I have related the story at the top of this piece to demonstrate that sometimes in the Criminal Justice system such silliness is not confined to lay Benches. My Aunt told me that the Jury she served on acquitted because when it came to it ‘that nice handsome young barrister would never represent a person who was guilty’. We are an intelligent family!  A respected judge was in trouble recently for responding in kind and swearing gloriously at a defendant. https://www.theguardian.com/law/2017/jan/09/judge-who-swore-at-abusive-defendant-cleared-of-misconduct.  My point being that we can isolate individual remarks by any group and unfairly condemn the whole.

I like Lay Benches. They represent and know my local community. I appreciate far more should be done to widen their social make up.  It is often said that magistrates are ‘middle aged, middle class and middle minded’ this stems largely from the principle that magistrates are expected to work on a part-time unpaid voluntary basis. Something more should be done in terms of expenses to ensure a more even representation of the community. (Like local councillors). Of course they are not as socially representative as a jury but they are far more so than District Judges made up from a cadre of professional lawyers.

And remember 95% of cases are dealt with by Magistrates court not by juries sitting in the Crown court. That will not change much. What might change is the switch from lay Magistrates to the professional variety (DJs). So before we dismiss thousands of decent volunteers remember what they are likely to be replaced with. Juries? Of course not. They will be replaced by remote screens and District judges dealing with people on bail applications and by IT sentencing algorithms with the defendant reduced to an impersonal malfunctioning image on a screen. It is easy to remand a person in custody when you do not have their quivering flesh and blood personage in court before you. A dehumanising experience.

Ah you my say. (In the manner of the wise) – A bench consisting of just professional District Judges would be so much more efficient. There are a number of things to say in response. They used to be in either way matters but I am not so sure now. They are certainly not quicker in Road traffic matters. DJs would be quicker in some complex cases but even savings there are exaggerated. Besides which that is not the only criteria. On the aspect of cost JPs are substantially cheaper because they are unsalaried and DJ’s are not. Overall, the costs associated with District Judges’ salaries are not typically compensated for – by the savings from the relative speed with which they transacted business. Here are the figures when calculated a few years ago.

  • District Judges are contracted each year, hourly costs totalled £148.32. Excluding training, sickness and work for the JSB and JAC gave “sitting days” comparable with the figures used for magistrates, and an average hourly cost of £162.16.

And compare to lay Benches

  • These costs totalled £26.80 per hour for a bench of three magistrates.

So no financial saving by removing JPs, unless HMG continues to destroy local Justice by removing courts and centralising them with DJs dispensing justice like remote Nabobs or Empire district Magistrates to the remote population via an electronic link. I don’t want that, I want local Justice with local JPs representing my community.

That is not to say that there are not issues with lay benches needing to be addressed. They have failed Justice at times by favouring the Prosecution over disclosure. Understandably they are concerned with the wider interest of Justice and not just defendants. But the wider interests of justice suffer when they do not apply the law and the Criminal procedure rules as they should otherwise with the system condemned to repeat the same chaos over and again. They have to make a stand. They place all emphasis on the need for statistical compliance over the need for justice as set out clearly in the rules they fail to follow too often.

Why do so many choose Jury trial over trial by Magistrates?

The answer lies in the alleged differential in acquittal rate. It is hard to pin this down. Some say it as a ratio of Juries overall appear efficient and effective compared to Magistrates courts. The ‘Are Juries Fair report’ said, reaching a verdict by deliberation on 89% of charges. Juries convict on 64% of all charges. https://www.theguardian.com/uk/2010/feb/17/juries-report-main-findings

But In 2011/12 the CPS published ‘conviction rates’ of 87% in the Magistrates’ Courts and 81% in the Crown Court. However, these statistics are misleading because they include guilty pleas.  If guilty pleas are excluded the CPS actually achieved a conviction rate of 60% of trials heard in Magistrates’ Court and The Policy Exchange published a damning report recommending significant changes to the CPS and in particular, highlighted the CPS’ failure in pursuing prosecutions to conclusion.

So I think it is hard to nail these comparative figures down. In any event many will choose to ‘stay local’ in their magistrate’s court and in my view the erosion of their right to choose venue must be resisted. It must be the defendant’s choice. All I am saying is that (and from our own local experience and others –  trying to avoid smugness) a trial at the Magistrates court is by no means tantamount to a delayed guilty plea so far as verdict is concerned.

I am always suspicious of the concentration of life changing power in the hands of one individual such as a DJ. I prefer to spread the responsibility to achieve a more safer consensual outcome among 3 JPs. In my experience they will endeavour to achieve justice and will listen to sound argument in a trial and human common sense in sentencing. There are times when some lay benches are too lacking in self confidence and treat ‘guidelines as tramlines’ but no more than DJs. But more often the Bench will do justice based upon the particular circumstances outlined within the hearing.

In addition although some benches do not have the ‘courage of their own conviction’ and obviously try to split the difference in verdict or sentencing post conviction, the modern practice of announcing reasons for a verdict does often show logic. Also where law has been argued it is satisfying to hear that more often than not a bench has grasped those issues. Of course we do not always agree with the verdict but despite for a second wanting a thunderbolt to strike the bench if the result immediately offends common sense quite often after the heat of battle cools one can see how they reached that verdict and there is always a right of appeal if it is massively against the weight of the evidence or wrong in law.

Quite often though a decent legal advisor will privately offer an informal off the record helpful perspective post trial which can inject a more detached view of the trial and its outcome. Good legal advisors are an essential part of our Magistrates system.

So yes I do support the lay Bench and I say this to them all. Thank you for all you do.  I do want to see Justice remain local. We need as lawyers to campaign for the local Bench to survive. In return the local Bench needs to report loudly to the Government the appalling ruination that was our fine criminal Justice system. Don’t resign. Read the Secret Barristers book. Protest. Individually to your MP’s. Protest through your Association. This is not being political. It is simply telling the truth of your own observations. They can’t sack or discipline you all!

Defence lawyers and all professionals must, together with our local Benches tell the Government that we want our criminal Justice system to survive.  We wanted it properly funded. The cuts to the courts, to probation, to the CPS and to Legal aid have all gone too far. It needs to be put right and quickly. Now where did I put that Bottle of Evian? Or is it time for something stronger?

Robin Murray

Wednesday, 11 April 2018

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

RUI ‘Released under Ignominy’

This short piece is written on the day that a typical mainstream media crime story broke. Was it about the near collapse of criminal legal aid? No.

Was it about yet another disclosure scandal? No.

Was it anything likely to show the criminal justice system in a positive light? In media? That would be news. No

It was the impact of relatively recent changes to bail. It highlighting the risk (apparent but not illustrated by examples) to the public by police failing to impose suitable bail conditions on those under investigation for serious sexual or violent offences. ‘Thousands of violent crime suspects released without conditions’ http://www.bbc.co.uk/news/uk-43589395

This is called ‘release under Investigation’ (not under ignominy as in my title- as that is just a potential bye product)

Manna from heaven for Government under attack from lawyers protesting vigorously about unsustainable cuts to legal aid. How distracting. I wonder if there is any connection.

In response to this I would like to act as something of a counterpoint to the BBC story. A bit of social media Ying to mainstream Yang.

Apart from the welcome distraction for the Government I suspect something else is going on in the background here. I have grave doubts as to the efficacy of the bail conditions that the police are so nostalgic for. They are often wholly disproportionate in their terms and quite ineffective. But I accept no contact conditions of bail might still be appropriate to reassure victims of violent crime or where witness may be at risk. But for the most part bail conditions are almost wholly unnecessary and onerous without serving much purpose. They were often imposed and then suddenly there were not, and in most cases for most types of other crime it really made no difference.

Indeed there was a major scandal that led to the change. There were horrendous stories about people being on bail for months and years. I introduced, as chair of the CLSA conference in 2016 Paul Gambaccini who spoke with real passion and eloquence about the nightmare of being bailed for a year with his life on hold until told no further action would be taken. The reality is that all solicitors knew of cases like that and the much argued for 28 day bail limit came supposedly to prevent that injustice. The 28-day limit took effect through the Policing and Crime Act 2017.

The Home office said:

‘The change “brings an end to the injustice of people being left to languish on very lengthy periods of pre-charge bail”.’

And In Hansard on the 7th February 2018 the Minister when laying the measure before the house said

‘chief police officers are being encouraged to examine the way that their forces handle cases of those released under investigation—that is, without bail; to ensure that the reforms to pre-charge bail do not inadvertently lead to longer investigations.

You will be as shocked, positively shocked as me to see this uncharacteristic flabby thinking from the MOJ. This providing such a wholly inadequate safeguard as a pious hope as to the efficacy of impact of senior officers ‘examinations’ on the time taken by subordinates to investigate those periods on RUI in case of they are not being completed in good time

Who needs to legislate or prescribe for time limits when the good old chief police officers carry out ‘examinations’ . There’s a copper bottomed guarantee for you!

Is indefinite investigation time the price paid to buy off the police for the 28 day limit on bail periods. Has it all been smoke and mirrors to ensure police are compensated for inadequate resources but at public and Solicitors expense.

It is a shame that the BBC instead of opting for the Daily Mail approach of going for the scary crime headline with their obtained FOI stats did not do us all a public service by checking whether Ministers & Chief officers have delivered on assurances of no longer delay. The police chiefs and the MOJ seem to have failed.

Because what actually happened? Did this measure improve the plight of those (let us remember) innocent people under suspicion. Not at all. Why? Because the police circumvented the new bail act by simply releasing people subject to no bail conditions at all. It is the above referred to process known as ‘release under investigation’ and it quite invidious. It is no better and probably worse in impact and stress than the older system pre 2017. That is because to avoid the 28 day bail period limit, which the police loathed, they have simply in most cases obviated the need for bail at all by not setting any bail date for the potential conclusion of the investigation.

This is, and I do not pull my punches, a disgrace. Parliament made a serious error by introducing in the 2017 Act what at face value sounds like an almost benign provision which was a ‘ a presumption in favour of releasing a suspect without bail’. No onerous bail conditions.

That sounds good. Except it isn’t. Because apart from showing how irrelevant and unnecessary most bail conditions were, it took a suspect say like another Paul Gambaccini or less publicly celebrated person back to square one in terms of time in a legal limbo. Because you are kept for potential months with your case being resolved whilst your case is apparently being investigated. I say ‘apparently’ because when you phone up to enquire you hear nothing or no one is available or calls you back so for all you and your client knows nothing is being done for months. Sometimes that is due to interrogation of IT or other forensic investigations but not always. Then if charged, with the sparse disclosure served (if lucky) you wonder what had they been doing for all those months.

Now of course that is an irritation for lawyers but for clients, especially the young it is deeply upsetting to be cast into this legal limbo. I had a young client whose boyfriend sent a harassing phone message using her phone. He admitted it. She was innocent but was ‘under investigation’ for 5 months. A couple of phone calls and a 30 minute interview with the boyfriend would have resolved this ‘investigation. Five months!

So why now all this stuff about dangerous offenders being released without bail conditions? Anyone hurt by the way. ‘A police watchdog previously warned this could endanger vulnerable victims. ‘Note the word ‘could’ by the way and yet here we are with a big story!

Who triggered this story? Who is it that does not like the 28 bail limit? My suspicion is this is a contrived story. The police hate the 28 day limit so they let everyone (almost) just leave on a ‘we’ll be in touch sometime ‘release under investigation’ basis. No time limit. You could be kept hanging around for years potentially. Now we have this overblown ‘scandal’ purporting to be about violent or sex offenders whom the police arguably could have kept on strict bail conditions for 28 days and then applied for extensions if justified.

Has RUI been manipulated and manoeuvred to achieve this end? It seems very odd that the culture should change from excessive use of bail condition pre the 28 day limit and almost reckless abandonment of bail conditions after a ferocious fight by the police to avoid that limit. Perhaps you may think I am being over cynical.

But the police in my view want bail time limits scrapped so the police can go back to the ‘good old days’ of keeping people under mere suspicion like poor Mr Gambaccini in life limbo for months and years without annoying time limits.

I have 2 proposals for change.

Proposal one

Let’s do away with bail conditions and its 28 day limit, save for a few serious cases to protect the public, but instead carry on releasing people under investigation with a time limit on that.

This to avoid conditions, to act as a spur for police activity and to prevent suspected people having their lives and those of their family blighted in this way so inimical to human rights.

That would avoid cumbersome bail conditions save for those few types of case where needed and would bring back sanity and control of these police station cases ultimately to the courts.

Proposal Two

There could be an interim stage of review within bail or RUI process involving a serious exercise with CPS  Police AND also the defence having some say and input at least to the degree consisitent with the integrity of the investigation simply so that  progress  or non progress can be identified.

Think extension of detention hearings where defence can question police on steps taken.

A two stage process. One stage out of court perhaps by video link then the next if neccessary in court for the next application for time. Some modest adjustment to funding would be needed if the suspect is legally represented. But some outside input is needed to prevent the excessive dealy we now are seeing.

This legal limbo is appalling and must be ended.

Robin Murray

Friday, 30 March 2018

Police Body Camera interviews are taking us back to a dark age.

The purpose of this article is to highlight what I believe is a determined effort to undermine the right to free and independent legal advice, this is practiced by some police officers and condoned by the cost cutting establishment. The abuse is the use of Body worn camera securing apparent admissions, without the necessary protection given to suspects including being informed of the right to independent legal advice.

How real is the problem? Very real in the view of many legal practitioners. I will give a couple of examples.

One from my own colleague Clair Wynn:

A few weeks ago I was sat in an interview room at ******* PS, typing up a million PS booklets whilst waiting for an officer to come down for disclosure. There were a group of four or five Police officers outside talking in the corridor. One of them was waiting for a solicitor to finish his consultation with a detainee and the other officers were telling him that he should have interviewed the guy out on the street so that he didn’t have a lawyer, telling him what he should say such as ‘well you can have a lawyer mate if you want to sit in a cell for a few hours….or we could just get it done now’. This conversation followed around 15 minutes of laddish banter about how drunk they had all gotten the night before and about one of the officer’s girlfriend’s, who was referred to as an ‘it’ being ‘well-trained’ as she cooked him breakfast, so by the time they got on to conversing about their tactics to dissuade people from having lawyers I was somewhat wound up, as you can imagine.

I stormed out of my room, read them the riot act, told them all of the reasons that they were a disgrace to the Kent Police and informed them that the only reason I wouldn’t be taking badge numbers and making a formal complaint was because I was too busy. I have never been more outraged at the police station in my whole time working in criminal law’

This from experienced solicitor Mark Savage:

‘One example is a client – police attend his home address, all on body cam, tell him that he can answer their questions, or be arrested, and wait in the police station for hours. “I will no comment” – the police respond “In that case, if you don’t answer our questions, we will arrest you”. The client has a panic attack, seen on body cam, he then wanders all over his flat while they record the interview on body cam. It is obvious that he is not compos mentis, in fact he has massive mental health issues. He was questioned for cultivation of cannabis, they would not let him adduce duress. He should never have been questioned. CPS view, he made admissions!!!’

No mention of the right to legal advice just the risk of detention for hours.

As State Information technology moves forward Justice Moves backward.

At least in the manner in which it is being used by public agencies. Whether this is in the use of  Virtual Courts(VC’s) or other courtroom links. Some use of ‘video’ links is helpful e.g. on formal remands to avoid unnecessary production of prisoners. But on other occasions most people in the CJS remain quite rightly sceptical in terms of the fairness of the process. A flickering image on a screen in the VC depersonalising a suspect and reduces justice to the level of a video game. Whereas presence in court enhances the personal connection between the suspect and the court which more readily views the former as a real flesh and blood human in a tense if not distressing predicament.

I am not a Luddite. I love technology. Our firm is state of the art in relative terms in its use of IT. One aspect of criminal justice that I personally welcomed was the recent introduction to the police forces across the UK of Body Worn Cameras (BWC). It seemed to me that it could only enhance justice to see what actually happened upon arrival at a scene of an incident and arrest. Certainly this to some extent has reduced disputes as to what occurred and tedious challenges over ‘verbal’s’ i.e. what was said or not said by a suspect to the police. However I and others strongly feel that the use of BWC is now being misused in a way that we had not envisaged to circumvent the protection of S58 PACE, which introduced the right to free and independent legal advice.

Briefly it should be recalled why this protection was brought in. It came about because Parliament recognised that there was a need to prevent further false confessions and police abuse as took place in cases that discredited our criminal Justice system. The names of the cases are well known and referred to as The Guildford Four, Birmingham Six, Judith Ward, and poignant tragic case of Stefan Kiszko who died shortly after release from prison for an offence science proved he could not possibly have committed.

After the introduction of these PACE protections the situation in police stations at least improved with the concomitant introduction of the Duty Solicitor service. But let us not deceive ourselves that all was perfect because many solicitors become aware after or sometimes before the fact that some police officers use a number of techniques to dissuade suspects from exercising their right to legal advice. The quiet word with the suspect ‘well of course we would like to get this over and done with but if you really want to wait hours for a solicitor to arrive?’ In fact so frequently did this occur that a special amendment to the PACE codes was introduced to specifically forbid this abuse. See para 6.4 of the code:

‘No police officer should, at any time, do or say anything with the intention of dissuading any person who is entitled to legal advice in accordance with this Code, whether or not they have been arrested and are detained, from obtaining legal advice.’

Supplemented by note for guidance 6ZA ‘No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which they are liable to be detained, or if not detained, the time taken to complete the interview, might be reduced’ etc.

Many of us believe that this rule is being circumvented often cynically but possibly in some cases because officers are just not that familiar with the provision (as strange as that may appear). Why I think that some are cynically circumventing PACE has its origins in the improper tactic used by police to abuse voluntary interviews at home or out of the police station. This to deter legal advice by not mentioning that right to suspects. I highlighted this some time ago here: https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article.

After a short sharp campaign together with my partner Richard Atkinson at the Law Society and Professor Ed Cape we swiftly achieved reform so that these out of police station interviews under caution do now require the offer of legal advice. ACPO were receptive and subsequently introduced PACE code 3.21 B providing this new safeguard (after 2011) for suspects –

‘If they are not arrested but are cautioned as in section 10, the person who gives the caution must, at the same time, inform them they are not under arrest and they are not obliged to remain at the station or other location, but if they agree to remain, they may obtain free and independent legal advice if they want’. Etc.

I have never seen the statistical ‘take up’ of this right that we fought for. It is quite rare for solicitors to receive a call from the call centre (DSCC) asking us to attend a suspect’s home or elsewhere in non-police station location. Again although we recognise suspects understandably would prefer a home interview many of us believe, that probably in breach of PACE Para 6.4 (see above) they are dissuaded from contacting a solicitor because they are told this will involve being taken to the police station to wait (possibly for hours) for a solicitor. By the way a Duty Solicitor is obliged to attend within 45 minutes and it is more usually the police delaying the interview not the solicitor impatiently waiting for the call to attend for interview. That is another issue so I will move on for now.

The addition of the use of BWC as a means of securing admissions is undermining the S58 PACE right to independent free legal advice. As can be seen from the examples given at the top of this piece the issue is real and is an increasing threat to the integrity of the investigative and court process. It is not necessarily motivated ‘at the top’ by a desire to undermine the right of suspects but as the furious Clair Wynn revealed is clearly now part of a growing police culture ‘on the ground’ at local level to achieve exactly that.

Chief Constable Andy Marsh when he announced plans for a pilot project testing the potential use of the technology for interviews outside police station said, at the time, that the pilot should lead to “swifter, fairer and, more importantly, cheaper justice”. Note the expression ‘cheaper Justice’. I don’t think the message has sunk in that justice on the cheap leads to no justice at all because without proper safeguards justice is denied. We are slipping back to the days that led to those horrible miscarriage of justice cases that so disfigured our criminal justice system. Not having legal advice properly available due to police dissuasion renders the PACE codes and the S58 right to it at times useless and inoperable.

Of course people will often consent to a swift interview. Who can blame them? Lawyers may feel that to be a reckless decision by the suspect or their parent if young. But we cannot impose legal advice on a compulsory basis. (Although there is an argument to be had on that with vulnerable suspects) What we can do is to at least ensure the suspect in the street or at home is told about the right to legal advice in accordance with the PACE code change we secured (see above PACE code 3.21 B).

What is chilling is that the use of body worn camera evidence of interviews is planned to become routinely based outside police stations with all its safeguards (initially at least for less serious crimes.). There has recently been concluded (6th December 2017) a consultation into a proposed amendment of PACE (https://www.gov.uk/government/consultations/revising-pace-codes-c-h-e-and-f. This would enable police officers to carry out interviews with suspects away from the police station altogether. That is a very slippery slope in my view.

The thrust of my argument here is that body worn camera interviews are being abused now. The suggestion of making them routine is worrying in the extreme given the problems we now see. This will lead to many more miscarriages s of justice.

What is also astonishing is the marginalisation of the role of (at least nominally) the independent Custody officer who tend to be experienced and at least are supposed to look at the welfare of the suspect. How much effort will a non-independent arresting officer put into that evaluation? How will this impact on the mentally ill? Where is the second independent opinion? Where is the custody Nurse and referral process?

It seems the focus of interviewing suspects is shifting to the streets and the casualties of this are the welfare of the suspect and the right to legal advice. I propose a halt on this extension of the proposed use of BWC interviews until a thorough independent investigation is carried out and reported to Parliament with these matters reported upon.

I also suggest in the meantime that no evidence of alleged consent to be interviewed can be admitted in evidence unless all discussion about access to legal advice is recorded including acknowledgement by the suspect that there had been no off camera discussion about this. That may enhance the protection of PACE somewhat by ensuring as far as possible that no attempts are made to dissuade a suspect from having legal advice by reference to delay in breach of PACE code Para 6.4. That might stop a police officer culture developing or becoming yet more entrenched, (as revealed at the top of this article) where legal advice becomes rarer by the day.

We are heading back to a something of a pre-PACE dark age. We know this is happening. It has to be stopped.

Robin Murray

Friday, 23 March 2018

Robin Murray is a solicitor advocate 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.

URGENT. CROSS PROFESSION/BBC SURVEY ON DISCLOSURE SCANDAL

It is really good and uplifting to see both sides of the profession cooperating on the exposure of the serious threat to British Justice that the recent disclosure failure cases have highlighted. We know that the crisis is far from limited to Rape allegations but applies across a whole range of offences.

It is especially good to see our national Broadcaster, the BBC, also prepared to cover the issue in such depth.

Last week a new survey on disclosure was announced.

The BBC became involved and expressed a keen interest on running the survey in conjunction with CLSA/LCCSA and CBA.

The BBC would like to hear from the profession about the disclosure concerns behind the headlines – identifying disclosure issues that arise on a day-to-day basis in the police stations, Magistrates’ and Crown Courts.

Please spread this survey far and wide and on social media and encourage all your colleagues to participate.

It is my hope that we will see more cross profession cooperation as we fight together to save the tattered reputation of UK justice before it is lost for ever. It is also my hope that the tide has now turned and more mainstream media will print the truth and view MOJ propaganda with the scepticism it deserves. We knew and predicted the serious risk miscarriages of justice caused by both Prosecution failure and the past unwillingness of the Courts to hold them to account.

Now is the time to tell the world what our Criminal Justice System has become. How neglect, underinvestment and disingenuous on the part of the the MOJ has brought our justice system nearly to its knees. We need to ensure all take part. It needs to be a major discussion point in the advocates/robing/waiting rooms in all our courts and at the police stations. This present generation of lawyers fights back. We have had enough. We blog. We tweet. We post. We are beginning to be listened to. Our focus in on Justice for the people of the UK and we will not be silenced. Spread the word.

Well done CLSA. Well done CBA. Well done LCCSA and well done BBC for giving this issue the airtime the nation deserves as its freedoms are increasingly compromised by the evidential disclosure abuses which have been taking us back to the bad days of the Guildford four and Birmingham six we had hoped had been left behind but now threaten every citizen of the UK again.

The survey only takes a few minutes to complete. All responses will be treated confidentially. Closing date is Monday 19th February.

 

https://www.smartsurvey.co.uk/s/BBCJusticeSurvey/

 

DISCLOSURE SCANDAL AND NEAR MISCARRIAGE OF JUSTICE . WE WARNED YOU. YOU DIDN’T LISTEN AND FAILED TO ACT.

Liam Allan, 22, was charged with 12 counts of rape and sexual assault but his trial collapsed after police were ordered to hand over phone records. See http://www.bbc.co.uk/news/uk-england-london-42365521

All credit to Prosecution barrister Jerry Hayes who revealed this failure to disclose scandal after he discovered a computer disk containing 40,000 messages which revealed the alleged victim pestered Mr Allan for “casual sex” none of which were disclosed to the defence Solicitors despite repeated requests

I am beyond fury on this case for a number of reasons.

Of course the fundamental issue of a an innocent man being on bail for two years facing distressing charges when there was no need whatsoever had the police done their job properly is the main reason.

But another cause for fury is to read this: ‘Mr Allan’s solicitor Simone Meerabux said when her client was arrested he had told police about the existence of the messages but “in spite of all that he was charged”.

She said prior to the trial the CPS had told them there was “nothing further to disclose” and it was only after they reiterated their request on the first day in court that the information was made available.

We are told that the police and CPS will be conducting a review. I should think so but this is not an isolated case. It is symptomatic of something far worse.

I feel like a disregarded Cassandra cursed to speak true prophecies that no one in the legal establishment believed as the CLSA (and the author, in a series of articles written) have been banging on about disclosure for sometime and predicted exactly this sort of near catastrophe. The CLSA launched a survey of the profession which shook many to the core with its revelations of prosecution failure to disclose and more disturbingly the failure of the courts to uphold the law and rules on disclosure. See the following attempts to sound the alarm:

http://thejusticegap.com/2016/07/kafkaesque-courts-complicit-prosecution-disclosure-failures/

http://thejusticegap.com/2016/11/disclosure-rule-change-finally-stopping-erosion-burden-proof/

https://mintedlaw.wordpress.com/2017/07/31/disclosure-discomposure/

https://mintedlaw.wordpress.com/2017/08/05/despatches-from-the-disclosure-battle-front/

And here the piece on the survey which revealed how deep the profession’s concern was and is:

https://mintedlaw.wordpress.com/2017/08/29/interim-clsa-disclosure-survey-results-if-her-majestys-courts-and-the-crown-prosecution-service-do-not-obey-laws-and-lawful-regulations-why-should-the-rest-of-us/

Has the legal establishment reacted with alacrity and concern? Not so far. The Criminal Procedure rules committee has not yet considered the matter despite the desperate urgency as revealed in this shocking case. Why has an emergency meeting not been convened as soon as we revealed the scandalous state of affairs?

And what about the the Ministry of Justice? On the BBC World at One program today the defendant’s solicitor Ms Simone Meerabux was absolutely right to speak of the MOJ latest cuts to legal aid which would target exactly this sort of case with many documents for the defence to investigate but if the unjustifiable cuts proceed will be hamstrung in future from doing so.

At the same time the Government (with one eye on the impact of Brexit) touts our ‘legal services’-on the international stage as ‘great.’ They may well be but the news media headlines surrounding the continuing destruction of access to Justice by unsustainable cuts to legal aid hardly provides a suitable or attractive optical or sound backdrop to that campaign.

Enough is enough. The legal and Government establishment must:

1. Announce an intention to reform the Criminal Procedure Rules on disclosure to give them teeth. To ensure the courts enforce them. To ensure compensation is available to defendants when cases are adjourned. To have cases dismissed where this is in the interest of justice to do so. To award wasted costs order in favour of defence lawyers and not as at present to the LAA which pushes money from one Government department to another.

2. Drop the legal aid cuts to large paper count cases at once to prevent future miscarriages of Justice. This is being litigated at the moment and we would ask if defending that case brought by the Law Society can possibly now be considered appropriate after this awful case?

The reputation of British Justice has been diminished and tarnished and should be restored in the manner suggested before we have not just appalling near misses like this but actual miscarriages of justice as we did in the past. For some it may already be too late.

Once again we warn. Once again we say to the Legal and Government establishment for God’s sake when will you listen?

For Gods sake when will you act?

Robin Murray

15th December 2017

The position of vulnerable suspects under arrest. Back to the Dark ages.

I once was in a police station faced with a female client, on a minor charge but who was clearly in a state of mental collapse. She could not stop sobbing. I tried to calm her to no avail. I found out from her that she had two days before been told by her GP that she needed to be admitted as a voluntary mental health patient. I reported to the custody sergeant that in my honest view she was in need of an appropriate adult and frankly I suspected that her mental condition was such that she was not fit for interview.

The Custody sergeant said that in his opinion she did not need an appropriate adult. If I insisted in maintaining she was unfit he would call in the on call GP. (Divisional surgeon). I said ‘she hasn’t got a broken leg. She has mental problems.’ The sergeant ignored me apart from informing me that I would have to wait outside for the GP. I did so but followed the GP back in (unauthorised) and there we found the custody sergeant in the corridor marching the poor sobbing lady up and down saying ‘Come on now. Pull yourself together. There’s a good girl.’ He saw me, looked a tiny bit embarrassed and showed me into the consultation room whilst the medical examination took place elsewhere.

I am afraid my experience of the on call Divisional surgeons was mixed and my opinion was not enhanced by what happened next. The Doctor told me ‘I can see she is a bit upset but I think she can cope with an interview’. I shook my head in disbelief. The custody sergeant could hardly contain his glee.

We went into interview and the young officer tried to explain the caution and ascertain the client’s understanding of it. This lasted for 20 minutes during which all the suspect said was ‘I want –sob- my husband- sob’ over and over again. I said to the officer ‘in the name of common humanity for God sake stop this tragic farce NOW!!!’ It took every inch of professional self-restraint to keep control such was my anger at them all.

She was bailed to another date. She was admitted to hospital. A report was obtained. I made a formal complaint that was upheld and that resulted in a letter being sent to all police stations in Kent saying ‘if a solicitor or any other professional informs the custody sergeant in good faith that an appropriate is needed then the benefit of the doubt must be exercised in favour of securing such person.’

Many of us have stories like this. I have more which I will not trouble you with.

After many years of incremental improvements in the position of vulnerable suspects the clock is about to be turned back to a darker age or less enlightened times. I remember this period and have always fought hard to improve the position of vulnerable suspects under arrest, with modest success, for example in helping to secure funding in Kent for what was then innovative Community psychiatric intervention in police custody. What matters now though is that positive safeguards are being eroded in proposed changes to the relevant Police Codes C and H. It has had little attention which is regrettable. Practitioners need to ready themselves for a harder time in securing decent treatment for those they represent. It is shocking really and against the tide of modern trend in policing and our justice system.

To what retrograde steps do I refer? It is the change in the PACE code from what is currently reflected in the present PACE code 1.4 to a far inferior protection. This provided:- ‘If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code’ and thus automatically triggers the calling in of an appropriate adult under PACE code note 1G:- ‘When the custody officer has any doubt about the mental state or capacity of a detainee, that detainee should be treated as mentally vulnerable and an appropriate adult called.’

What is changing? Firstly the definition is changed from ‘mentally disordered or otherwise mentally vulnerable’to ‘vulnerable adult’ but defined under para.1.13(d) to mean a person who (paraphrasing): -‘may have difficulty understanding the implications procedures and processes including their rights and entitlements because:-

(i) they may not understand the significance of what they are told, of questions they are asked or of their replies;

(ii) may be particularly prone in certain circumstances to:

  • providing unreliable, misleading or incriminating information without knowing or wishing to do so;
  • accepting or acting on suggestion from others without consciously knowing or wishing to do so; or
  • becoming confused and unclear about their position.”

Here below are the likely battle lines I suggest, arising in the revised Note 1G which in my view, very regrettably, firstly says:-

‘but the fact that someone has a mental health condition “does not, in itself, mean that they are vulnerable”. That has to be determined by the custody officer on a case by case basis, taking all the circumstances into account.’

So whereas we almost had a fail-safe default position that someone at least with a diagnosed mental health condition would be assisted by an appropriate adult that will no longer be the case. In a sense the custody sergeant is retrospectively qualifying or ignoring an existing medical diagnosis without needing anyone else to tediously express a contrary view. What will happen is that after a cursory few seconds discussion at the custody desk, provided the suspect grasps as few basic concepts rattled off in those seconds, the Custody sergeant will happily say ‘I am satisfied he understood the ‘implications procedures and processes including the rights and entitlements’.

But, you may say, perhaps the interviewing officer will discover the problem and stop the interview. In my experience all the interviewing officer generally wants to do is to get through the process as quickly as possible. Certainly most junior officers will not want to challenge a custody sergeant’s judgment.

But perhaps the Solicitor can save the day and make representations? After all they will have had a far better opportunity to assess the client in a consultation than a busy sergeant at the custody desk. Well that depends if there is one present. About half of suspects do not request legal representation. Vulnerable people are perhaps often not able to make that judgement call in their own interest. Secondly the redraft of Note IG no longer has the final sentence of the existing text advising that in case of doubt, the person should be treated as vulnerable and an appropriate adult be called. So looking back at my story of the Custody sergeant arm in arm marching a suspect up and down snapping ‘pull yourself together’ do you think that sergeant would listen to the solicitor or would they say ‘in MY judgement I am satisfied he-she understood the ‘implications procedures and processes including the rights and entitlements’ when I booked him/her in’. No longer will the Solicitor be able to say ‘Now look sergeant and with all respect, in my opinion this client is vulnerable and as I am telling you that in good faith you should treat the client as such under PACE code 1G’ because that safe guard is removed.

So prepare for amateur custody sergeant medical diagnosis over ruling your professional judgement as to vulnerability of your client in interview. Your experience and even knowledge of the client will potentially be swept aside.

The absence of an appropriate adult also weakens resistance to attacks via the inference of silence with prosecutors relying on their absence to bolster an assault upon the exercise of the right to remain silent which can be crucial to the vulnerable. ‘Well it was not considered that he needed an appropriate adult’.This will also conversely of course result in more challenges based on the unfairness of the procedure under S78/S76 etc. You would be entitled to argue, possibly with medical evidence that due to the incorrect decision by the custody sergeant that the interview should be excluded. This may be a costly change indeed. We have taken a backward step in the treatment of the vulnerable. Back to the dark ages.

Robin Murray

Monday, December 11, 2017