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. 

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.

It’s a strange fact of legal life that scant regard is often paid to the wishes of the client at sentence.

For many, of course, sentence is the moment for punishment. To ask somebody what punishment they would like seems paradoxical and indeed it often is.

In other circumstances, it is a question of a court administering some “tough love”, which again might not be top of the defendant’s own wish list.

There are of course those occasions when a court can find itself in real difficulty! Some clients will say in terms that they know that they cannot cope with a particular sort of sentence at a particular point in time, however advantageous that sentence may seem to be. The client who needs to detoxify but knows that he or she can only do it behind bars. The client in a long term dispute with his or her partner or parents, who knows that things cannot change quickly enough under a community order to stop them re-offending. The client who just doesn’t want to be living in the only accommodation that is available to them right now and will do anything to get out of it.

There are times when a court just has to sit back and say on this occasion the client knows best. Where a court imposes its own paternalistic or maternalistic desires it can’t behold that court to then be angry and offended when the inevitable breach proceedings are brought.

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.

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.

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.

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.

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?

At present the Parole Board has 240 members. None of the Parole Board’s members are black. 13 of the Parole Board’s members are from the BAME community, but still none of them are black. The B in BAME might as well just not be there.

To achieve an absolute absence of black members of the Parole Board is a considerable achievement. It is not an accident. It is not a mistake. It is not something that could have happened without anybody noticing. It is a diabolical demonstration of the worst forms of institutional racism in practice.

To have a process that fails to appoint, attract, or appeal to members of the black community is utterly unconscionable. Who knows where the fault lies, but there must be a strong argument to say that one of the people responsible is Nick Hardwick, the former head of the Parole Board who resigned with much sympathy and support after the overturning of the parole decision in the John Worboys case.

Whatever Nick Hardwick’s credentials in terms of reform, restructuring, improvements in through put and the like, there can be no doubting that as a fighter of institutional racism he was nothing more than an abject failure.

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.

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