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

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‘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 that (to quote the legislation) 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 destroy 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

Criminal Legal aid. A new approach to funding

  1. My first and firm preference has always been for a properly public funded system through legal aid. I think that instinct is widespread and entirely laudable. It is also doomed to failure and disappointment. It has already been substantially eroded by cuts.
  2. We need new thinking about the provision of access to justice in criminal cases. Legal aid is a right to gain access to justice not a benefit. The Bach Commission report is ahead of its time. I support its findings. However It does tend to deal more with civil legal aid than criminal funding for perhaps the obvious reason that this was hit hardest. This short piece concentrates on criminal legal aid. It is not uncontroversial but we need to drastically change our dependancy upon Treasury ‘generosity’ because if we do not the system will not survive. The Treasury does not understand this or does not care and MOJ ministers are too intimidated by them and career focused to make a stand against cuts.
  3. My starting point is this. No one of moderate or inadequate means should be denied access to justice simply because they lack immediate income or ready capital to fund representation at a particular time. However criminal legal aid needs a completely new approach if it is to survive as a viable quality service with skilled lawyers devoting their time to this area of work.
  4. The level of remuneration is not the only factor but a sense of vocation does not pay for housing or support a family. Longer term there is an obvious link between levels of pay and the quality of legal representation. How do we restore that link to at least viable levels?
  5. Access to justice should not be the preserve of the wealthy. Neither should it be a welfare benefit or free like healthcare provision for the convicted but a loan repayable upon conviction and sentence.
  6. We cannot stop a contraction of the criminal legal aid market – that is dictated by circumstances beyond our control (the drop in criminal activity, the way the police and CPS act, and so on) but we can move away from high volume, low paid models of working.
  7. We need to scrap the absurd over regulation of legal aid (6 levels ) and move to ‘one stop’ regulation to avoid overpayment or incorrect claims through key performance indicators so that firms whose figures seem ‘out of line’ can be identified and audited.
  8. Apart from this audit role, the Legal Aid Agency would be reduced mainly to being a payment department.
  9. The SRA would audit advice, conflict checks, standard letters etc and ensure compliance with the ethical code.
  10. The sweeping away of over regulation will save millions for the treasury and free firms from having to cope with the present onerous and expensive tick box bureaucracy.
  11. The fees we earn should be independently set and not limited to tax payer funding.
  12. We should move to a mixed funding approach to guarantee access to justice. There is nothing ‘progressive’ or ‘socially compassionate’ in acquiescing to the gathering pace of Government destruction of legal aid for criminal cases.
  13. The crisis needs us to embrace new thinking or die. We cannot rely on HMG alone to fund in a time of financial crisis. It simply is not a priority for either HMG or the public ( until it affects them personally.)
  14. The profession should have the right to negotiate top-up fees with clients (not on benefit) where appropriate.
  15. It will be a duty to advise rates vary between firms. Solicitors will need to market themselves. Some will market themselves at legal aid rates only and highly price competitive. Others advertising some or all of their work as worthy of a top up premium.
  16. Counsel will also be free to negotiate top up fees with solicitors’ firms. The Bar have been badly hit by legal aid cuts.
  17. Legal aid eligibility for police station work will be free at the point of delivery with incentives for senior lawyers to attend on more serious cases.
  18. Crown Court legal aid eligibility should be drastically simplified. There would have to be more contribution levels and they will each have to be higher than for the lower case work.
  19. All contributions for Crown Court work should be collected in the same way as for the lower case work (back not front loaded and nothing to pay till the outcome.
  20. For lower & higher Court work nothing to be repaid for legal aid part of case funding upon acquittal.
  21. Defendants will not object to paying a little towards their own defence according to (albeit limited research) and they will now, in common with solely private clients have a financial stake in demanding and driving quality representation.
  22. Those who want a more than a basic service can pay a top up fee – for example, to have the attention of a more senior lawyer.
  23. Lastly we can simply block our ears, shut our eyes, behave like the ostrich but without a radical new approach we will be forever condemned to hoping against hope that some decent socially responsible Ministers will ‘rescue’ criminal legal aid. Might that happen? Do you think in your heart of hearts it will with all the competing demands upon the Treasury? Or as I argue above do we have to show politicians that there is a cost saving and more efficient method of funding that is detoxified in media terms by moving to a mixed partnership between firms, their clients and the Government? We should do what we do in Court. ‘ Show them the way home‘. Politicians are busy with conflicting demands upon their time. With few exceptions they do not want to see the collapse of access to justice on their watch but simply they will not listen to anything that hints at further expenditure. Hence Dominic Raab’s unfortunate and incorrect summation of the Bach Commission report as such in the recent West Minster Hall debate.

This is vital.

Vital for the public.

Vital for the profession – especially the young lawyers who deserve better from some, but not all, senior colleagues than a closed minded outdated traditional clinging on to a failing system of legal aid provision that politicians wrongly traduce as excessive expenditure.

We need new thinking to reflect the reality of the political and economic situation. I believe these ideas will actually not only save legal aid but improve the quality of access to justice. If followed it will ensure the survival of the profession dedicated to the noble cause of providing legal representation to those accused of crime by the powerful State and others.

Robin Murray

30/11/17

Salt in the wound: Disclosure failure. Where are we now?.

The awaited response of the Criminal Procedure Rules committee to deal with the disclosure scandal has not yet been made known or indeed whether there will by any response at all by the committee. I am led to believe the issue is under consideration but if it would be helpful if that was made publicly known given the high level of disquiet on the issue. see 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/

The Boardman case has proved to be something of a false dawn which would explain the survey results revealing court and continuing prosecution disclosure failure on an epic scale. In R. v Boardman (David) [2015] EWCA Crim 175, the Court of Appeal had upheld the trial judge’s decision effectively to bring the prosecution to an end where evidence had been served late.

It was this passage which gladdened my heart the court:

fully recognised the pressure under which the CPS was working, but that could not be an answer if effective case management was to mean anything. In any event, it was not just the CPS which was under pressure. If defence lawyers on a fixed fee had to make repeated applications that reduced the rate at which they were remunerated. Further, the court lost days which could have been used to try other cases and court resources were expended.

The court however did warn that :

‘the fact that the defence solicitors did not alert the court to the problems of non-disclosure at a time when something could have been done about it (but left the complaint so late that the trial date could not be met) meant that the court was deprived of the opportunity of an earlier listing to resolve the issues could be resolved and maintain the trial date. It would be perfectly open to the judge to decide that the consequences of such a failure of duty on the part of the defence should be to reject a complaint of prejudice consequent upon the need for an adjournment.’

This word of warning was reinforced later by the same court in the case of R. v Salt (Thomas) Court of Appeal (Criminal Division)[2015] 1 W.L.R. 4905; [2015] 2 Cr. App. R. 27; where the Appeal Court further warned that:

‘where the documents not disclosed were of limited materiality, in contrast with the more significant failing in Boardman, a fair trial was possible, and failings by X’s defence team had played a part in what happened. Balancing those factors, the court felt it would not be in the interests of justice to stay the proceedings’.

Actually in the Salt case the evidence in question related to the credibility of the Complainant’s evidence. That decision was worrying as it seems to downgrade the importance of ‘credibility’ evidence. Note in contrast how often the courts will admit ‘bad character’ evidence against the defendant thus eroding the latter’s credibility. This will please some politicians and press commentators who elevate ‘complainants’ to ‘victim’ status before the evidence has been tested.

So once again, and with respect, the court itself manipulates the system by setting the bar high before it will ‘stay the proceedings’. In reality a ‘stay’ means forcing the Crown to proceed without out reliance upon evidence not served resulting in the prosecution offering ‘no evidence’ and the case being dismissed as a consequence. The damage is done by the courts from top to bottom placing undue reliance upon CRimPR 2015 Rule1 (2) (c) which I set out here:

‘Each participant, in the conduct of each case, must at once inform the court and all parties of any significant failure.’

Not enough weight is being given to the equally (and I would say more) important other rules and law requiring prompt disclosure.

What other provisions do I refer to? Firstly the initial disclosure rules 8 (2) (3) and (4) which the prosecution fail to follow often up to the date of trial where essential evidence is either not served or served late at the very door of the trial court.

Beyond the initial disclosure (if you are lucky enough to receive an adequately complete disclosure including statements etc.) there are further obligations upon a prosecutor to serve available evidence in good time, especially before a trial. These obligations remain covered by:

a) All the requirements of the common law,

b) By Article 5 and 6 of the European Convention on Human Rights (as CRimPR 1 (1) overriding objective explicitly recognises)

(c) EU Directive 2012/13 of 22nd May, 2012 and;

(d) Crim PR 14.5(2) imposing a continuing duty upon the prosecutor to ‘provide the court with all the information in the prosecutor’s possession which is material to what the court must decide’ and;

(e) CRimPR 24.13 which provides that ‘any party who introduces a document in evidence, or who otherwise uses a document in presenting that party’s case, must provide a copy for each other party’ etc.

On the face of it the case of R v Salt was disappointing  because it gives the appearance of searching hard to distinguish Boardman by focusing not upon the appalling prosecution failure but deciding the type of documents not disclosed were of ‘limited materiality’.

I appreciate all cases depend upon their own facts but, with respect how does the court know what evidence is material to the decision on guilt or innocence on the facts put before the tribunal of fact? If it is relevant to an issue in the case and normally admissible but for failure to disclose – why is it in the interests of justice to ambush the defence at the last minute with it? Isn’t that just the sort of conduct the CRimPR’s were meant to discourage?

To adjourn the case, to permit the use of late served evidence, seems to suggest it is indeed material and yet not ‘material enough’ to be excluded apparently. With respect I find that approach rather indulgent of prosecution failure. What does that mean to the defence? You are entitled to service but have to ignore the failure to serve if only ‘a bit material’? Either it is material or it isn’t and if it is material the prosecution should be held to account for failing to serve it.

It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. That principle was reinforced by the ECHR in Jespers v Belgium (1981) 27 DR 61).

So why do the courts fail to enforce the rules designed to prevent this disclosure abuse? I do not wish to be over critical of the court in the Salt case because the clue to that failure might be found here within the R v Salt judgment:‘

(Obiter) All Chief Crown Prosecutors and Chief Constables should study the judgments of this court in Boardman and in this case. There should be no recurrence of failures of this kind by either the CPS or any police force. Further, the Criminal Procedure Rule Committee would be invited to consider whether other sanctions, beyond the making of a wasted costs order, could be imposed on the prosecution in cases of this kind (paras 71, 73).

In other words the Court of Appeal although having to deal with the present disclosure regime implicitly refers to its inadequacy. Why else invite the rules committee to consider other sanctions?

The problem with defence notification to the courts of prosecution disclosure failure is that is such notification often prejudices the defence still further with uneconomic (and for the defendant) stressful adjournments as the lower courts appears to strain every sinew to, if not to excuse the prosecution, then to make sure there are no adverse consequences suffered by them. Rarely does the ‘polluter pay’.

I have argued before that there should be urgent reform of the CJS to provide for more adequate compensation for parties and lawyers than the present wasted costs regime. See: https://mintedlaw.wordpress.com/2017/09/15/lord-chancellor-wasted-costs-orders-are-wasted-on-the-laa-change-the-rules-to-compensate-those-who-suffer-the-loss/ .

Furthermore the request to the Criminal Procedure Rule Committee by the Court of Appeal in the Salt case, to consider ‘other sanctions’ has not yet produced action from that body. Once again I suggest that the committee develop a sense of urgency and respond to the Court of appeals invitation and indeed that of the profession. (See the disclosure survey graphs and statistics).

The committee should consult with the MOJ about changes to the wasted costs regime as suggested previously so that if a court regards an adjournment as not inimical to the interests of justice then proper compensation for the unwanted adjournment can be paid to the accused and to the defence lawyers (Not to the LAA). That may act as both a deterrent and an incentive to comply with disclosure rules where, such as in R v Salt, the court described disclosure failure in in these terms:  ‘the conduct of the CPS and the police as having been reprehensible.’

What other sanctions could the Court of Appeal been referring to? Difficult to say but in truth most practitioners believe the prosecution are not fearful of the consequences of failure. Partly this is due to the dismal record of many courts is ensuring the CRimPR’s are enforced. It is obvious that the rules need strengthening.

The bar for successful applications to adjourn after failure to serve evidence must be elevated so that it becomes a real hurdle to overcome. An overwhelming majority – (96.16%) of practitioners surveyed by the CLSA took the view – that at a trial – the Crown should not be able to rely upon evidence served late which might put the defence under unreasonable logistical or time pressure without leave unless in exceptional circumstances. (Or it is agreed).

There will be times where to do justice, balancing all factors, it would not be in the interests of justice to stay the proceedings (on the basis that if not stayed their continuation would undermine public confidence in the administration of justice) but necessary to allow the case to be adjourned, after considering all the usual criteria (as set out in CPS v Picton (2006) 170 JP 567).

A combination of weapons is desirable. Once the CRimPR’s have been amended to raise the bar on adjournments for lack of evidential service these failures will become fewer. Further if the Prosecution budget is hit by fixed compensation to parties and wasted costs directly to the lawyers, after all, it is they whose financial position is hurt by any adjournment as explicitly recognise in Boardman quoted at the beginning of the piece, perhaps both measures will cure the disclosure ills affecting the CJS and restore respect for the process.

Both the profession and the Court of Appeal know the problem is real. The problem is now. There must be no further delay in dealing with these scandalous costly and time wasting service of evidence failures.

Robin Murray

Sunday, 19 November 2017