Archive for the ‘ Uncategorized ’ Category


What a Production

Written by admin
January 13th, 2019

Increasingly throughout 2018 a new problem has begun to manifest itself in prisons throughout the land: prisoners are said to be “refusing” to attend.  Whether it is visits at the prison, video link conferences, video links to court, or productions to court as defendants or witnesses, time and again we are being told that the individual has “refused”. 

A number of courts have attempted to establish a protocol, whereby a form has to be completed by the officer visiting the prisoner to try to secure their attendance.  An uncooperative prisoner is unlikely to sign such a form, and so inevitably the form is being completed by officers who may have a skewed perception of what the prisoner is saying, or may have their own reasons for suggesting that the prisoner is being uncooperative. 

If a prisoner can be signed off as “refusing” then there is no need to move them within the prison or from the prison and life becomes concomitantly easier.  Regrettably, however, neither lawyers nor courts can truly have confidence in such a system.  Many clients, seen on a later occasion, will simply say that nobody ever came to get them.  It is not uncommon to be talking to a prisoner on the phone at half past eleven, who is looking forward to an afternoon visit, only to be told that they have “refused” that visit.  May things can happen between 11:30am and 2:00pm, but equally many things may not!

It is hard to know how to rectify the problem, but to enable it to be assessed, it might help if, whenever a client tells their solicitor that they have not in fact been called for, when officers have suggested that they have refused to attend, a widely shared comment to that effect should be added to the digital case system for all to see. 

The Curse of the Curfew

Written by admin
January 10th, 2019

Many clients, charged with serious offences, who only secure bail by agreeing to a curfew, will find that they are far less happy at that period of home detention if charges are reduced.

A robber, who suddenly becomes a handler, may find real frustration in remaining on a curfew whilst a pre-sentence report is being prepared. Somebody who starts off facing a Section 18, only to have that charge reduced to an ABH, will often feel aggrieved if they are still prevented from going out at the weekend for a post-work jar or two.

Where a client has been subject to a curfew, it is vitally important to impress on the sentencing bench not only how long that curfew has been in place but also the various effects that it has had on a defendant. Whether the curfew has prevented them doing overtime, stopped them visiting friends, stopped them participating in regular pursuits such as sport or even cinema-going, it is important that the court understands the effect that the curfew has had. Where one member of a family has had to put on another family member to walk the dog or pop out to the late night store, it may be important for the court to know how that has affected the relationship between them. In some cases, relationships will have been put under pressure or even broken down because of the close proximity in which two individuals have been kept.

Only if a court truly knows the effect of a curfew can it take it into account when assessing the sort of sentence that is now fair in all the circumstances of the case.

Don’t Diss Duress

Written by admin
January 3rd, 2019

As time’s gone by, the perceived wisdom is that it is harder and harder to benefit from the well-established defence of duress.

A suggestion that a defendant has to be in fear of death or really serious personal harm before a duress defence can even be contemplated is obviously a higher hurdle to cross.

Even where somebody genuinely does fear for their life or for their personal safety, the defence of duress can slip away depending on the circumstances in which they have chosen to live or the friends or associates that have chosen to keep.

Nevertheless, there really are cases in which duress succeeds. Those of us imprisoned in the legal bubble can forget just how much personal information and experience jury members bring to the decisions they have to make.

What may not seem to be a really serious threat to those of us who daily deal with injury and death, may seem probably too real to a normal ordinary member of the public, perhaps with the same sensitivities as the defendant themselves.

It is important that no-one loses credit for a guilty plea unnecessarily, but it is equally important that clients are not saddled with convictions, sentences, and records that they might have otherwise avoided if their lawyers had had the courage to put to a jury something that it might find only too palatable.

Bad Old Confiscation

Written by admin
December 27th, 2018

We are all too used to Proceeds of Crime Act hearings, enquiring into the assets of defendant and struggling to calculate the benefits that they have derived from their criminality. It is worth remembering that long before Proceeds of Crime were an issue, the courts have long had the power to confiscate the property of a defendant, where that property was used in the furtherance of the commission of an offence.

Many courts have got into the habit of forfeiting not only the scales and bags of drug dealers, but also their mobile telephones. Relatively few go on to consider confiscating vehicles used in the sale or transport of property connected with crime. Drugs, firearms, stolen property, trafficked persons, and many other people or items can be conveyed in vehicles which may then be the subject of confiscation procedures.

It is a foolish solicitor who leaves a client in the dark, until probing questions are being asked by a judge who is about to deprive them of a particularly treasured piece of property. We are all too familiar with those who have to run to the dock to try to take rapid and incomplete instructions, rather than having prepared themselves fully in advance for the arguments that need to be raised. No court should confiscate any item where the effect on the defendant would be disproportionate in all the circumstances of the case and of their lives.

A Stranger Danger

Written by admin
December 21st, 2018

Crown Courts will regularly have to consider whether a client is “dangerous”. In essence, the issue is whether they are somebody who has committed an offence of a particular gravity, either now or in the past, or an offence that has attracted a particular sort of sentence. Faced with their current charge, the court has to consider whether they impose a real threat of particularly unpleasant sorts of harm to individuals in the future.

In general, when found dangerous, defendants have to serve two thirds, rather than half of the sentence set down by the court and they can only be released with the consent of the Parole Board. Many people also face an extended period of licence supervision to ensure that they are closely monitored by the National Offender Management Service.

It ought to be remembered, however, that there are certain offenders who can be found to be “dangerous” but who can still be released at the halfway period without the involvement of the Parole Board, and who needn’t be subject to the extended licence provisions. The finding of “dangerousness” is entered on the defendant’s record, but no other step is taken. This flags up their position to a subsequent sentencing court, dealing with either a new offence or a breach, but ensures their return to the community at the earliest and most appropriate time.

As times goes by, it seems apparent that fewer and fewer sentencing tribunals are aware of this power, or have it at the forefront of their minds when passing sentence. This may be something that many defence advocates needed to consider bringing to attention of a court that may be passing a very significant sentence on a client who deserves better.

Crouching Tiger, Sauntering Dragon

Written by admin
December 19th, 2018

Inevitable comparisons have to be drawn between the recent departures from high office of the Sports Minister, Tracy Crouch and the former DPP, Alison Saunders.

Alison Saunders maintained both publicly and in meetings with members of the Bar, the judiciary and solicitors that the prosecution service benefited from adequate funding throughout her time as DPP. She talked about structural reform and organisational re-organisation, but never challenged her Alistrol masters and mistresses. Only after her final salary cheque was in the bank and her pension was safe for all time, did she dare to say what everyone else had been saying for the last five years.

Tracey Crouch however gave up a well-paid government job and returned to the back benches as soon as it became apparent that fixed odds betting terminals were to remain the scourge of high street betting shops until October 1919.

The comments of both will of course have brought to the attention of the public and the government the issues surrounding both Crown Prosecution Service funding and revenue to be derived from gambling machines. Nevertheless, the personal integratory and long and short term respect for Tracey Crouch must be at an insurmountable high, while Alison Saunders is left wondering whether those who have argued for her to receive no honours list award will have their way.

For those of us in the professions, for victims of crime, for court users, for witnesses and for the sake of the whole judicial process, we can only hope that Max Hill is not as tongue-tied as his predecessor and if necessary will press the Tracey Crouch nuclear button.

MOJ budgets aren’t even for Christmas!

Written by admin
December 1st, 2018

Recent calculations have shown that the MOJ’s annual budget amounted to less than four days’ worth or four 365th’s of the DWP’s government allowance.

If the two departments start spending their annual budgets at midnight on New Year’s Eve at an equal rate, the MOJ will be spent up two days before the twelfth night arrives.

There can be no doubting that both departments have vital jobs to play. There can be no doubting that the call on the DWP is a much stronger one than on the MOJ, but these exciting statistics show just how small that Ministry of Justice budget really is.

Enough money to allow an equal spend for the length of your average Premiership football match would be enough to allow for an enormous improvement in the working conditions of all within the justice system.

An increase in the MOJ budget to allow an equal spend for time equivalent to one episode of Prime Suspect would be enough to ensure the proper and timely investigation of all cases presented to the Crown Prosecution Service in a twelve month period.

An increase in the MOJ budget sufficient to allow Nick Grimshaw to play three songs on his afternoon show would be enough to see a dramatic percentage increase in the legal aid budget which would allow for recruitment and retention of staff and a sensible working week for all defence lawyers.

As we approach the time for drawing up our Christmas lists for Santa, are any of the above really too much to ask for?

Who needs reasonableness!

Written by admin
November 22nd, 2018

We all know that knife crime is on the rise. Not to the levels of Victorian times, not to the levels of 1993, when criminal offences across the board were at their highest. In fact, knife crime is rising towards the levels experienced in 2010 and 2011.

It is obvious that the government wants to “do something”. Legislation imposing vaguely mandatory sentences on those convicted of carrying bladed articles or offensive weapons for a second time has been a future of the sentencing process for many years.

Not satisfied with this removal of discretion from the judiciary, the government now wishes to attack a different part of the criminal justice process.

Certainly, out of nowhere, there are calls for a re-evaluation of the old “stop and search” powers. This much malign and often inflammatory procedure has, in recent years, been kept in check by the requirement for police officers to have a “reasonable suspicion” before stopping or searching an individual. A number of members of the government are now suggesting that the requirement for a “reasonable suspicion” be removed.

Any action that can be carried out unreasonably, or without the use of reason, is obviously likely to lead to concerns and difficulties. Imagine that someone allegedly acting in “self-defence” did not have to show that they had acted “reasonably” just that they had acted in self-defence. What sort of mayhem might ensue?

Where the power to be used “unreasonably” is a coercive power, as in the case of stop and search, the perils for us all are enormous. Those of us who remember the Bristol riots around the Black and White Café, the Brixton riots of the early 1980’s and the Toxteth riot of similar vintage remember just how much violence and disorder ensued from the hatred and loathing that had built up after the misuse of “stop and search” powers.

If widespread civil disorder and a break down in the relationship between the police and the public are the price to be paid for this cack-handed attack on knife crime, it may be felt that the account would soon become unbalanced.

Lock ups and Lock outs

Written by admin
November 19th, 2018

In a desperate attempt to save Her Majesty’s government a few extra ill-gotten pounds, the MOJ are now consulting on closing the remand courts in Doncaster, Barnsley, Beverly and Grimsby. The only remand courts in South Yorkshire and to the whole of Humberside, would be in Sheffield and Hull.

On the face of it, the considerable expense involved in refurbishments at Barnsley and Doncaster and the installation of video links at all three courts now seems to be for nothing.

The travel to be imposed on families and friends, who want to be present for vital first hearings, subsequent bail applications and hugely important sentencings are a cost that will now have to be met by the poorest members of society rather than the government through the justice system.

If there is anything that can be done to avoid the alienation and injustice that these sorts of closures bring we, at The Johnson Partnership, want to help to do it. We have long felt that it is time that the justice system operated for the benefit of those defendants, the complainants and witnesses who find themselves unwittingly involved in it, rather than its administrators and overlords.

 

UNITED WE STAND, DIVIDED…

Written by admin
October 25th, 2018

UNITED WE STAND, DIVIDED WE FALL!  It could be the hook line of a 1960’s chart hit.  It could be the slogan of any number of Trade Unions.  It could be part of the anthem of any number of variously successful football teams.  In truth, it is a fair synopsis of the early summer negotiations with the MOJ in relation to advocates graduated fees.

How clearly we remember the rallying cry for HCAs & Counsel to stand together in refusing new work with rep orders dated after the 1st April.  How clearly we remember the confident assurances of the Bar that if we “stood shoulder to shoulder” we would be unstoppable.  How fervently the Bar leaders applaud us to work with them for the same goals? And now what?

What was it that the arch negotiators of the Inns of Court were able to achieve? A £15m boast – derisory in itself – that in fact was worth less than £10m by the time that inflation had eaten into it, VAT had been removed and some more astute calculations had been worked through.  A 1% increase, which turned out to be less than almost anybody else in the public sector was due to get in 2019.  Adjustments that we are going to need, not only a consultation but also a statutory instrument.  As autumn presses forward, the consultation is extended further into the future.  The statutory instrument is unlikely to find its way before Parliament until the start of the New Year.

And so, why the heading to this piece?  What is all this talk about unity and division?  It is simply this! All of the negotiating regarding changes to the hated and diabolical AGFS alterations were carried out by members of the Bar.  That’s right, not solicitors, not solicitors and barristers working hand in hand, but members of the Bar.

Of course, when it came to taking action solicitors were right there not so much side by side as leading the charge.  They were easily identifiable.  They were from named firms.  They could be reported to the SRA.  They weren’t able to hide behind their clerks or their individual choices as self-employed professionals.  When, however, it came to sitting at the negotiating table, having meetings in smoked filled rooms, stalking the corridors of power, only one half of the profession were present.  There was no unity.  There was no sense of being “united”.  And now, viewed from the autumn end of the telescope it can only be concluded that those who chose to go into battle alone did indeed fall divided and unsuccessful.

Were the representatives of the solicitors half the profession in some way frightened?  Was there an unexpected timidity on their part?  Were they too busy looking after their members’ interests in the teeth of a ferocious SRA, stoked up by members of the judiciary who themselves came from the ranks of the Bar?  No, none of the above were true.  They simply weren’t invited.  The Bar simply chose to have covert cosy meetings with the MOJ without us.

What then for the future?  As new calls ring out for strike action, refusing new work, no returns!  The solicitors have to consider whether they should again go through the humiliating sham of being called to arms only to be left in the slit trenches; or whether they should simply say from the start that the only ally is one that you can trust and with the benefit of experience, there really don’t seem to be many of them around!

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