There's nothing as queer as evidence

Sad as it may be, we all have 'favourite' judges. Whether it's because we particularly like them or whether it's because it is simply better to appear before them than their colleagues, I'm not sure. Either way, I appeared before one of my favourites recently. He's a favourite because I am yet to lose a trial in front of him. I have no doubt that it's just a coincidence but it's a coincidence that I happen to like.

Recently, however, I thought the game was up. Some months prior I had attended the Crown Court to represent a gentlemen at his PCMH. The charge was one of dangerous driving. The evidence appeared overwhelming. The story goes like this- it was about 23:30 and a police car was making its way along a (not very busy) main road. The occupants comprised the driver and his colleague who was sitting in the front passenger seat. Their "attention was drawn" to "two flashy sports cars" that were travelling, one just behind the other, in the opposite direction to the police car. As the cars passed the police car, the police officers both noticed that the drivers "seemed very young to be driving such expensive cars" (one was a Porsche which was being driven by my client, the other was a BMW being driven by the Co-Defendant). The police car turned around in order "to follow them to see what they were up to". The suggestion then was that both officers witnessed the BMW pull up alongside the Porsche (the BMW now being on the wrong side of the road) and the two cars "began to race". The officers said that the police car was doing "at least 60mph" at one stage along the main road but was unable to catch up with the cars. One officer alleged that there was "a near fatal" collision with a bus at one point. (There was no evidence from the bus driver). The police radioed their colleagues and fortunately for them there were two police cars nearby. One was parked at the top of the main road near a roundabout. The other was travelling down another road which led on to the roundabout (from the opposite direction of the main road). There were two officers sitting in the car which was parked near the roundabout. They both said in their statements that the Porsche and the BMW approached the roundabout at "excessive speeds" (the speed limit being 30mph) and that the BMW went the wrong way around the roundabout. The Porsche "went over the top of it" and stopped (as did the BMW) when they was "flashed" by the third police car that was approaching the roundabout from the opposite direction. Both of the drivers were arrested and both denied driving dangerously in their respective interviews. They said that they were observing the speed limit at all times, they were not racing, there was no driving on the wrong side of the road, they did not pass a bus, and they stopped when required to do so by the police.

At the PCMH, I gave fairly strong advice to my client. In short, there were 5 police officers who were going to give damaging evidence against him at trial. They all alleged that he was travelling over the speed limit, two alleged that he was "clearly racing" on a main road where there were other road users, one alleged that he nearly collided with a bus, and another two said he approached the roundabout at an excessive speed (one added "in a dangerous manner"). Believe me when I say that the totality of what was contained within the witness statements was far from good. However, the client was adamant that he had done nothing wrong. That was good enough for me. A not guilty plea would be entered and we would let the jury decide who was right.

The following weekend I decided to go and have a look at the road in question, it being not too far away from where I live. I went at night in order to get a realistic impression of what it must have looked like to the participants involved. Two things were of interest- (i) there were CCTV cameras at various points along the road- I'd already made a request in my Defence Statement for any footage but now at least I knew that the area was 'covered'- and (ii) The road was littered with moderately high speed bumps- they were of the sort that you had to go over, there was no getting round them. How, I thought to myself, was my client supposed to have driven a Porsche of all cars at the speeds alleged without destroying the front of his car? I took some photographs, knowing that I wouldn't be able to use them in evidence, as an aide memoir. I would later ask my solicitor to take some more so that I could use them in evidence.

The trial was listed for three days. I shall not rehearse the entire evidence. On day one the two officers from car number one gave evidence. An extract from the cross examination of officer number one (the driver) is as follows-

Me- You said in your evidence that you were travelling at about 60mph?
Officer- Yes.
Me- How do you know that?
Officer- I looked at my speedometer.
Me- And you did that all the way along the main road?
Officer- Yes
Me- If you're correct about that, the Porsche and the Mercedes were travelling much faster?
Officer- I am correct about that and yes they were.
Me- Did you have them under constant observation along the main road?
Officer- Yes
Me- How did they manage to navigate the speed bumps at that speed?
Officer- Sorry?
Me- The speed bumps. How did the drivers manage to navigate them at such speeds?
Officer- There aren't any speed bumps on that road.
Me- Really? Are you sure about that?
Officer- 100% sure
Me- Take a look at these photographs please. That's the main road isn't it?
Officer- Yes
Me- What are all these (pointing at the speed bumps)?
Officer- They are obviously speed bumps.
Me- That's funny isn't it, because you just told the jury that there weren't any?
Officer- Sorry, I got that wrong.

The officer's credibility had been annihilated. There was no way that the cars could have been travelling at the speed he alleged. I knew it, he knew it, the judge knew it and the jury knew it. My Co-Defendant's Counsel, in preparation of officer number 2 coming along (who alleged the near collision with the bus), asked as follows-

Co-Def- Tell the jury please about the near collision with the bus?
Officer- I'm sorry?
Co-Def- You know, there was nearly a big accident between the cars and an on-coming bus.
Officer- No there wasn't.
Co-Def- Are you sure about that?
Officer- Yes. I would have remembered if there had been a near collision with a bus.

We were now able to sit back and relax while officer two gave his evidence. He of course talked about the "in excess of 60mph" speed and the "near collision with a bus". The members of the jury could not have looked less impressed. Neither, for that matter, could the Judge.

The two officers who were waiting near the roundabout did not take the Crown's case much further. They were stationary and could give no realistic estimate as to how fast the cars were travelling. One officer clarified that when she said the Porsche went "over the top" of the roundabout, she meant that it took the "straight ahead exit", not that it literally went over the top of it. My Co-Defendant still had some difficulties because two officers gave evidence that he had gone the wrong way round the roundabout.

What did the jury make of it all? I don't know. In relation to my client the Judge upheld a submission of no case to answer and so the case was withdrawn from the jury. The Co-Defendant remained and I'm not sure yet what has happened to him.

So the simple point to take from this tale is that sometimes witness statements can be deceptive. A case can look overwhelming on paper but that is not always borne out in court. And, this Judge still remains one of my favourites.

Sureties and the trouble with the decision in Assange

On the 8th October 2012 the Chief Magistrate, Senior District Judge Howard Riddle, ordered 9 sureties to pay a total of £93,500 into court as a result of the failure of Julian Assange to surrender to the court as per the conditions of his bail. The decision of the Chief Magistrate so to do is, in my view, highly questionable.

What is the purpose of a surety? In short, a surety (or in this case sureties) is placed under an obligation to ensure that an accused person in criminal or extradition proceedings attends at court. If they fail in that duty then they risk having to pay a sum of money (the amount of which they have agreed prior to the grant of bail) into court. If the court granting bail considers that sureties are required, it follows that, without them, the court is fearful that there is a substantial risk of the accused person failing to appear at court. It is not, for example, the job of a surety to ensure that an accused person does not commit any offences whilst on bail or indeed interfere with any of the prosecuting authority's witnesses. Section 8(2) of the Bail Act 1976 details the sort of considerations that a court should have regard to when considering whether a proposed surety is suitable. Unsurprisingly, these include the character of the person proposed, the financial resources of that person and, importantly, the relationship between the surety and the accused. After all, the surety is supposed to be able to ensure that the accused attends court when required. Accordingly, a court should ask itself whether or not the proposed person/persons are going to be able to exert any degree of control over the accused in order to get him or her to attend court. If there is no relationship, or no close relationship, between the accused and the proposed surety, what is the point of accepting them? If the accused does not care one way or the other whether this person loses their money, the exercise is a pointless one (save that it might heighten the chances of the Government making some money out of the process).

Now it of course has to be right that the starting point, if an accused fails to attend court when required, is that the sureties must forfeit their 'pledged amount'. Otherwise, what is the point of the system? The court does, however, have a discretion to order that the sureties pay less than the sum they pledged or indeed pay nothing at all. Section 120(3) of the Magistrates' Court Act 1980 is drafted in clear terms:

"The court which declares the recognisance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum."

Thus in the present case, the Judge had three options open to him- (i) order payment of the whole sum, (ii) order part payment or (iii) remit the entire sum. The Judge here went for option (ii) which is interesting for reasons which I shall return to later. It will be noted, however, that even the order for part payment still required a very considerable amount of money to be paid into court.

It is also beyond doubt that the lack of any culpability, on behalf of the sureties, for the accused's failure to appear, is not of itself a reason not to require forfeiture of the relevant amounts- see for example Choudhry v Birmingham Crown Court (2008) 172 JP 33. However, as Lord Justice Parker observed in R v Reading Crown Court ex parte Bello [1992] 3 All ER 353, at 363,

"The failure of the accused to surrender when required triggers the power to forfeit but the court, before deciding what should be done, must enquire into the question of fault. If it is satisfied that the surety was blameless throughout it would then be proper to remit the whole of the amount of the recognisance and in exceptional circumstances this would...be the only proper course."

Were the circumstances in the case of  Mr Assange exceptional? Surely, the answer must be yes. Unusually, although it appears to be happening more often than it used to, the District Judge gave written reasons for his ruling which can be viewed on the judicial website-

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/sureties-julian-assange-08102012.pdf
 
Accordingly, it is possible to clearly follow the rational of the Judge, so far as it exists, for his decision. We can ignore the lengthy procedural history of the case (which for the purposes of this post is of little relevance) and jump straight to page 6 where the Judge summarises the arguments of Counsel and the Sureties. He says this:

 

"Mr Blaxland helpfully made the following points before withdrawing. The court has wide discretion. This is a unique and genuinely wholly exceptional case. Mr Assange has not absconded – he has sought asylum with a country with diplomatic relations with this country. The sureties had been surprised by the length of time these proceedings had taken to resolve.

Mr Vaughan Smith then addressed the court. He had been asked by the nine (I think he meant eight) other sureties to speak on their behalf as well as his own. I will attach the full address to this judgment. He started by saying that the sureties "appreciate that the court wants to know what the sureties may have privately or publicly done to encourage Mr Assange to submit to the British police since he entered the Ecuadorian Embassy on 19 June." He referred to the lengthy extradition challenge; the controversial circumstances; attacks by US officials on Mr Assange personally and through Wikileaks. If the sureties publicly urged Mr Assange to abandon the embassy, "it would undermine Mr Assange but we don’t believe it would do anything to extract him from the Ecuadorian Embassy. It would certainly be a very public betrayal and in our view, importantly, it would also betray the public." The sureties visited Mr Assange the day before. They were told that the Ecuadorian Minister of Foreign Affairs had investigated and found that Mr Assange’s fears of persecution by the United States and others were not unreasonable. He had been granted political asylum. He explained the continuing threat to him emanating from the United States. Mr Assange is convinced he faces serious risks in US custody. The securities cannot disregard that risk. They believe the Ecuadorian government is negotiating with the Swedish and British authorities, looking for a solution, and they hope that those discussions will be fruitful. Mr Vaughan Smith then described the huge amount of effort the sureties have provided over an unexpectedly long period. He ended "in this unique, and this quite exceptional case, to comply with what this court seems to expect from us; to all publicly urge Mr Assange to abandon the sanctuary that he has found in the Ecuadorian Embassy, would see us acting against a man whom we and others judge to have understandable fears about his ultimate treatment in the United States if he abandons his asylum. That would render us

mercenary and contemptible individuals of great weakness of character. It cannot be the right thing for us to do."

 

As Counsel indicates, this case was indeed "wholly exceptional". Mr Assange has not absconded in the traditional interpretation of the word. He has not fled the jurisdiction. He is not 'on the run'. He has sought, and more importantly been granted, political asylum. He remains in the United Kingdom under the protection of the Ecuadorian Embassy. Everybody knows that he is there.

 

Mr Vaughn Smith makes the point that, in the circumstances of this case, the sureties felt unable to comply with the expectations of the court- in other words to try and convince him to abandon his asylum, notwithstanding the fact that there remain justifiable fears, so the Ecuadorian Embassy has found, regarding Mr Assange's treatment in the United States.

 

The Judge publicly acknowledges the position the sureties have taken at page 7 of his ruling:

 

"I say immediately that I have real respect for the way that the sureties have conducted themselves in difficult circumstances. I am satisfied that what they have said and written accurately reflects their genuine views. In declining to publicly (or as far as I know privately) urge Mr Assange to surrender himself they have acted against self-interest. They have acted on their beliefs and principles throughout. In what is sometimes considered to be a selfish age, that is admirable."

In fact, he does more than acknowledge. He states that he has "real respect" for the way in which they have conducted themselves and indeed calls them "admirable" whilst also acknowledging that the circumstances in the present case are "difficult" ones.

But then the Judge appears to turn his back on the unique facts of this particular case. Instead he recites the history of the importance of the obligations placed on sureties and the consequences that will follow in the event they fail to fulfil them. This allows him to express his 'public policy' concerns over what would happen if sureties were not obliged to forfeit their pledged sums of money when an accused fails to attend court. He says, at page 8, this:

"There is clearly an important point of public policy involved. If a person accepts the responsibility of a surety, and the defendant fails to surrender as required, then the starting point must be that the surety is forfeited in full. It would be unfortunate if this valuable method of allowing a defendant to remain at liberty were undermined. Courts would have less confidence in the efficacy of sureties. It would be particularly unfortunate if it became established that a defendant who absconded without in any way forewarning his sureties thereby releases them from some or all of their responsibilities. In this case Mr Assange told the sureties that "he did not tell us of his decision because to do so would have placed us in legal difficulty" (see the statement to the court of Mr Vaughan Smith). In short, even if a surety does his best, he remains liable for the full amount, except at the discretion of the court."

With the greatest of respect to the Judge, this public policy argument, in the context of this case, is misconceived. By refusing to forfeit the sums pledged, the Judge was not about to change the law on surety forfeiture. Nor would he have undermined the system. Nor would his decision impact upon the way in which other courts had confidence in the efficacy of sureties. To suggest otherwise is, in my view, nonsense. This case was wholly exceptional.

When people fail to attend court, it is usually for one of the following reasons:

(i)    They have a reasonable excuse (e.g they have been admitted to hospital);
(ii)   They have forgotten that they have a court hearing;
(iii)  They simply can't be bothered to go to court; or
(iv)  They are in custody having been arrested on suspicion of committing another crime.

People do not, generally speaking, fail to attend court because they have been granted political asylum within an Embassy based on-shore in the United Kingdom. That is most unusual (if not unique). Therefore, a decision not to forfeit the sureties in this case would have had no greater consequences than to acknowledge the exceptional circumstances surrounding this particular case.

As noted above, the Judge did not, however, adopt this course. Nor did he require them to pay the full amount. Instead, he ordered part payment. This path was an interesting one to take. In some instances, it was as a result of a means inquiry. But not all. The Judge observed, at page 11 of his ruling, that

"Having seen and heard from the sureties, I cannot avoid taking some account of their integrity.

I approach this decision on the basis that I should forfeit no more than is necessary, in public policy, to maintain the integrity and confidence of taking sureties so that a person may be released on bail"

This conclusion is, to my mind, extraordinary. First, he accepts that the sureties acted with integrity and indeed commends them, as noted, earlier on in his ruling. Yet he nevertheless orders them to pay substantial sums of money into court for their failures to perform their "basic duty". Furthermore, he goes on to state that his decision so to do is based upon grounds of public policy. As observed earlier, this ground is, it is respectfully submitted, misconceived. Public policy was not going to be affected as a result of refusing to seek forfeiture in the highly unusual circumstances of this case. It is fair to say that the Judge exercised his discretion in favour of the sureties but, in my opinion, he did not do so far enough.


Related Thoughts

Anxious that my post is already long enough, there is one, hypothetical situation, that is worth considering. Imagine that Mr Assange decides to leave the Embassy and voluntarily attends (or, as is more likely given that a warrant has been issued, is arrested and escorted to) court. It will be put to him that he failed to attend court when required to do so. Mr Assange will no doubt respond by saying that, pursuant to s.6 of the Bail Act 1976, he has a reasonable excuse for failing to do so. His excuse would be-

"I was granted political asylum at the Ecuadorian Embassy on the grounds that the government of Ecuador believed that I may become a victim of political persecution, as a result of my dedicated defense of freedom of expression and freedom of press as well as my repudiation of the abuses of power in certain countries, and that these facts suggested that I could at any moment find myself in a situation likely to endanger life, safety or personal integrity."

An impressive response to a charge of absconding one may think. If a court found that Mr Assange did have a reasonable excuse for failing to attend, what would happen to the forfeited sureties? The Judge touched upon the issue at page 5 of his ruling when he said-

"However I was not prepared to adjourn until such time, if any, when Mr Assange appears before the court. It is not the usual practice. The possibility that Mr Assange has a defence of reasonable cause to the allegation of failure to surrender cannot be excluded. The same applies when any defendant apparently absconds. For example it may later be discovered that the defendant had been critically injured, or perhaps kidnapped, or in some other way prevented from attending and prevented from communicating. If that happens, then any security or securities estreated would no doubt be returned."

The provision for returning the estreated amounts was not identified by the Judge. Perhaps it just has to be put down to a matter of common sense or 'discretion'. True enough, if a court found that an accused had a reasonable excuse but refused to return any sums forfeited from a surety, I suspect the matter would end up before the High Court. The references by the Judge to defendants who may be discovered to be ill, have been kidnapped, and so on, is, one may think, unhelpful. In those sorts of cases, one does not discover the reason for the defendant's failure to attend court until such a time as he has been arrested. In this case, the Judge was well aware of the reasons why Mr Assange was not present- he was in the Embassy.

It will be interesting to see what happens if and when Mr Assange does appear back before the Magistrates' Court. One thing is for sure, this tale has not yet concluded.



 

Financial Penalties- Part II

I often blog about things I have experienced whilst at court. One such post related to the conduct of two lay benches when it came to the imposition and collection of financial penalties (see my post of the 14th August 2012). Although doing no more than reciting my experiences, the post attracted written criticism from some- with one JP saying "There is no way, ever ever, that a Bench will behave in this loathsome manner" and that "unrepresented defendants are treated with deference, respect and kid gloves without exception".

Yesterday I was emailed a case which I read with considerable interest. It is called R (on the application of Evans) v North Somerset Magistrates' Court [2012] EWHC 2382 (Admin). It is worth a read.

The case concerned the decision of the Magistrates' Court to commit the Claimant to prison for a period of 12 months in respect of the non-payment of an outstanding compensation order. You know that the case if going to be worth a read when Lord Justice Moses observes in the first paragraph that "What went on leading up to that committal seems to me a matter of considerable concern".

On the 13th March 2009, the Claimant had pleaded guilty, before the Crown Court at Bristol, to offences of theft and false accounting. She was sentenced to a term of 8 months' imprisonment. Confiscation proceedings were commenced and, on the 7th April 2010, the Crown Court made a confiscation order pursuant to s.6 of the Proceeds of Crime Act 2002 (POCA), assessing the criminal benefit as £56,039 and that the available amount was £27,771.29. That available amount was calculated by reference to the fact that the Claimant had a 100% interest in the equity of a dwelling house (valued at £25,771.29) and a car (valued at £2,000). The total sum was to be paid as compensation to the victim of the crime (a rugby club) and was to be paid within 6 months.

Time for payment was subsequently extended (the property not having been sold within the 6 month period). On the 12th August 2011 the property (and car) were sold. Unfortunately, there had been a miscalculation of the amount of equity in the property for which the Claimant had a beneficial interest. A shortfall of approximately £18,600 remained. Accordingly, the Claimant applied to the Crown Court for a variation of the Order and, on the 1st September 2011, the amount of the Order was reduced to 'nil', the Crown Court being satisfied that there were no other available assets.

The Claimant, however, still had to deal with the question of compensation (the compensation issue being distinct from the confiscation order, notwithstanding that the order on its face designed the order to be deployed in satisfaction of compensation). Pursuant to section 133 of the Powers of Criminal Courts (Sentencing) Act 2000, the Magistrates' Court may:

"...On the application of the person against whom the compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) to (4) below."

The case thus came before the Magistrates' Court on the 7th October 2011. They apparently heard evidence from the Claimant's partner, a Dean Evans, who although in employment, was due to be made redundant and to receive a redundancy payment, and also heard from representatives of the victim rugby club as to the disastrous effect on them of the dishonest behaviour of this claimant. The Magistrates adjourned those proceedings, ordering the Claimant to make a payment of £120 per month towards payment of the outstanding compensation order. The matter came before the Magistrates again on 2 December 2011. At that stage the Court heard that the Claimant's partner had indeed received a redundancy payment and apparently had heard that there was available, out of that redundancy payment, a sum of £3,000.

The Legal Advisor to the Magistrates provided the High Court (as part of the Judicial Review proceedings) with a document described as a 'statement of facts'. At paragraphs 10-11 of the Judgment, Lord Justice Moses observes that,

"In any event, on that hearing on 2 December, he [the Legal Advisor] says that the means enquiry was conducted with the Claimant on oath and the Claimant asserted that neither she nor her husband had the means to pay the compensation order and she indicated that her husband's redundancy payment had been used in full to set up a new business and thus the offer of payment out of that was withdrawn. It appears that she was asked about a holiday she had had, which she accepted, in Turkey earlier in the year, staying in a friend's villa, but there is no record of how much that cost or whether that was unreasonable expenditure in the context of the order made against her. She told the magistrates on that occasion, according to Mr Sims, that £7,500 remained out of redundancy money. The statement then goes on in quotation:

"The Justices adjudication was that the compensation should stand (...) The Justices were satisfied that the offer of payment from the redundancy money was made freely by the Claimant at the previous hearing and no good reason existed not to further consider this."

Accordingly, they ordered that she pay £3,000 within 14 days and to continue with the monthly payments of £120. There was a warning that she would go to prison for 12 months if she did not pay it. A review hearing was listed for 4 March 2012, once, so it is recorded, it became apparent by late December that the sum of £3,000 had not been paid. I then note with some disquiet that in this, "the Claimant had failed to contact the court to advise that she was unable to pay".

It seems, however, that the Claimant had not failed to contact the Court. At paragraph 13, his lordship continues-

"There was an acknowledgement on 22 December from L Guest, the administrative officer at North Somerset Court House, saying the hearing had been arranged for 3 January to allow the magistrates to read your letter. Those circumstances, are, as I have said, a matter of disquiet that it is asserted that she failed to contact the court. She did and there was a hearing on 3 January 2012 when she was, again, unrepresented. It is recorded that the £3,000 payment had not been made and the statement goes on:

"The claimant clearly told the justices that she did not see why she should have to pay the order. Her demeanour was belligerent during the hearing and she seemed unable to understand why she should have to pay the money outstanding to the compensatee. In effect she had already been punished. In answering the questions put to her by the justices the claimant expressed a palpable level of contempt for the court, claiming to appear unmoved by her compliance with the previous court order, made no offer of payment. A means enquiry followed. No offer was forthcoming and at this point the claimant's husband stood up in the public gallery and offered to pay £3,000 that day."

I turn now to the central part of the Judgment which is worth reciting in full. Paragraphs 15-21 of the Judgment read as follows:

"It was contended at a subsequent hearing by Mr Cameron on behalf of this claimant that that offer, apparently shouted out from the public gallery, was made when both the claimant and her husband felt under considerable pressure that if an order was not made she would go to prison. Mr Sims says that there was no pressure applied, that if payment were not made, imprisonment would occur. This is a surprising statement. Given the whole context of this case and the letter sent saying that the claimant was under severe depression and suicidal behaviour and that neither member of the household was working and that on more than one occasion she had been warned that if she did not pay it she would go to prison, it is startling to read from the legal adviser that no pressure was put on this claimant. The pressure arose from the circumstances, as anybody there must have appreciated.

Accordingly, following that date, the next hearing was a hearing on 3 February 2012. At that hearing, Mr Campbell did represent this claimant and evidence was given of the amount she received by way of employment support allowance of£67.50. The submissions fell on stony ground. The court, in giving its decision to send this claimant to prison, noted that the club had lost £56,000 and that£18,000 was still owed and it must be paid. It then recorded the history I have identified and the magistrates said the court entirely refutes any suggestion of improper pressure upon you on 3 January. The question is not whether there was improper pressure but whether the offer made by the husband was not plainly as a result of fear that were it not to be made the claimant ran a very real risk back in January of the very thing that occurred the month after, namely that, having already served one sentence of imprisonment, would go back there to serve even longer of the 12-month sentence. The magistrates said: "You are clearly in breach thereof of two court orders and the court finds culpable neglect."

The reasons were then expanded by the legal adviser who made it clear that the justices were satisfied that the claimant had exhibited culpable neglect in her approach to discharging compensation and particularly that no other method of obtaining the compensation was available. This is of significance to this claim because the magistrates went through the other possible sources of money to meet the compensation obligation. The legal adviser records that all other enforcement options were considered and were discounted as inappropriate or previously unsuccessful. A distress warrant was inappropriate because the claimant had no goods to distrain. A third party debt order was not appropriate because she had no savings. A money payments supervision order was inappropriate because other debts had been paid without such an order. An attachment of earnings order was inappropriate because she was not employed. A deduction from benefit order was inappropriate as the maximum amount was £10 per fortnight and it would take too long to pay. She was too old for an attendant sentence order. This is of considerable significance in this case. It demonstrates the magistrates' appreciation that there were no funds other than the paltry sum of £127 a month out of her benefit from which her own resources could meet the obligation to pay compensation. In those circumstances, it is necessary to identify on what basis it could be said that she had been guilty of any wilful refusal or culpable neglect. That was crucial to the order that the magistrates made. Absent such a finding, there was no basis for sending her to prison.

The only factual basis stemmed from the offer of the husband to use some of his money, and I emphasise, it was his money, which he had received by way of redundancy compensation to satisfy his wife's obligation. There was no obligation upon him to make the offer. As I have already sought to emphasise the circumstances in which he made it were perfectly plain: he did so to save his wife from going back to prison. The fact that he chose subsequently not to, whether for a good, bad or indifferent reason, did not in any way begin to establish a wilful refusal or culpable neglect on the part of his partner, this claimant.

The magistrates appear, in my judgment, to have fallen into error in two significant respects. Firstly, they failed to have regard to the orders of the crown court by which it was accepted that she had no assets to meet the confiscation order and that the confiscation order was linked expressly on the face of the order to compensation. It was thus recognised by the crown court that she had no assets out of which to pay the compensation. The only basis upon which it would be right not to discharge the compensation order would be on the foundation of clear evidence that there were other resources by way, for example, of regular income from employment or some windfall subsequent to the discharge of the confiscation order out of which the compensation order could be made. No such finding was made by the magistrates. No such finding could be made because there was no such resource, there was merely the sum she received by way of benefit. The second error into which the magistrates fell arose out of their elision between the resources of her husband and her own resources. That elision could not, as a matter of law, arise out of the mere fact that her husband had made an offer of £3,000 in the circumstances I have described or indeed under any other circumstances; it was entirely open to him having made the offer to withdraw it and there was nothing to suggest that she had compelled him to do so.

The error was, in my view, a basic error of law in regarding his assets as the same as hers. If authority is needed that the two are not the same, it is to be found in the R v Charalambous 6 Cr App R (S) 385 and in Archbold, paragraph 5-405, the edition of 2004. Both were cited by Newman J in R v Patricia Engam [2004] EWCA Crim 1536. It is wrong in principle to impose a fine on the assumption that one person, for example a spouse, will pay another person's fine. In that case, the judge expressed the limitations of that principle where it was sensible to regard the assets of a household as joint income and assets. Apparently in this case there was clear evidence that the spouse before the court was not the principal earner but that she had available to her the income of her partner because the income was properly to be regarded as joint income (see paragraph 13). That situation is miles away from the case here where the redundancy money plainly did not belong to this claimant and to which she had no entitlement and which was not part of her assets. I have explained the circumstances in which the offer was made and that provided no basis in law or in fact as foundation for making the compensation order, still less for finding culpable neglect.

It is, in my view, a matter of regret that although proceedings were launched and permission speedily granted in writing, no interim relief granting this claimant bail was allowed. Of course, High Court judges are enjoined not to grant bail in criminal appeals on the basis that if it is a short sentence, the case can be heard very quickly and it is thoroughly undesirable that someone who has been sent to prison should be released on bail and then sent back shortly after. But a compensation case like this is wholly different and, I am afraid, sad to recall that three different High Court judges, as this case maundered on between 2 March 2012 and 4 April 2012, failed to take a sympathetic and merciful view and let this lady out as soon as possible. We granted bail over lunch because we had not reached a final conclusion. But for my part, in my view, she should never have been ordered to go to prison in default at all and the magistrates erred in serious measure in those two respects. I will quash the decision and I shall hear argument, if my Lord agrees with that conclusion, as to the form of the order we should make for the future."

That the Magistrates "erred in serious measure" is undoubtedly correct for the reasons the High Court gave. However, what interests me is the way in which the Magistrates seemingly conducted themselves throughout the various hearings. Once again, I refer the reader back to my earlier post of the 14th August and the comments made by some in relation to it. In particular, not only did the Magistrates make "a basic error of law", the way they appear to have treated the Claimant is deplorable. The very fact that an offer of payment was being shouted from the public gallery is, many may think, indicative of the same. Furthermore, and as the High Court acknowledged, the fact that the Magistrates had conducted the exercise they had (in relation to other enforcement options) should have set off a huge flashing red light that this lady did not have the means to pay. For some reason neither that exercise, nor the previous findings of the Crown Court, swayed them from what turned out to be one of the most troubling Magistrates' Court decisions I have read in recent months.

There are serious lessons to be learned from this case and I for one suggest that it should be circulated throughout Magistrates Courts up and down the country. I do not, for one moment, suggest that all Magistrates are as incompetent or uncompassionate as those in the present case. However, this Judgment does illustrate that incidents such as those recorded in my post of the 14th August are certainly not isolated ones.

 

Baby names and the law

Yesterday my sister had a baby. Big congratulations to her, her partner and the little one. Prior to the birth, I was chatting with my sister about possible baby names. "Are there any illegal baby names?" she asked me. I thought about it and then said "I don't know". I decided to conduct a little investigation...

I can find no legislation which directly prohibits certain names or types of name. A spokesman for the General Register Office has, however, previously stated that whilst there are no restrictions on the names that parents can give their children, "an official" could refuse to register a name, in an exceptional case, where the name could be deemed offensive. I do not, as at the time of writing, know what form the legislative basis for this proviso takes nor who and how the phrase "deemed offensive" is interpreted. What I do know, however, is that the General Register Office has, in recent years, been happy to register names such as "Superman", "Gandalf", "Gazza" and "Arsenal". It is, therefore, hardly surprising that celebrity parents have been permitted to give their children names such as "Harper Seven" and "Fifi Trixibelle"...

Is the rest of the world as liberal when it comes to the legality of baby names? It would seem not.

Countries such as Denmark, Spain, Germany and Argentina all publish lists of acceptable baby names from which the parents must select. The German authorities, for example, will not allow a baby to be called "Hitler" and have also refused specific requests that children be allowed to be named "Osama Bin Laden", "Stompie", "Woodstock" and "Grammophon".

The Department of Internal Affairs in New Zealand have rejected names such as "Christ" and "Lucifer" whilst also prohibiting parents from naming their children with symbols and numbers. In 2007, the BBC reported that a New Zealand couple had lost a legal battle to name their child "4Real" and so settled on "Superman" instead. A number of other sources I perused revealed that Judges in New Zealand have previously refused permission to name twins "Fish" and "Chips" although did permit the names "Number 16 Bus Shelter" and "Violence". Although my absolute favourite refusal by the New Zealand judiciary has to be for the request that a child be named "Talula Does The Hula From Hawaii."

Over in Malaysia, it seems that the Government had to ban the name "Chow Tow" which, when translated into English, means "Smelly Head", whilst a woman in Norway was apparently jailed for 2 days for giving her child an unapproved name.

Finally, a Judge in the United States refused to allow a man to change his name to "God" so the man settled on "I Am Who I Am".

So one thing is for sure. There is certainly no consistency when it comes to which names are permitted and which are not. Should parents be able to call their children anything they want? If not, who should make that decision and what criteria should be applied before a decision is reached?

Never work with children or animals- although if you do, it might just pay off.

I noticed a Facebook page doing the rounds yesterday which read 'RIP Pippin the Dog'. Some of you may remember the children's TV show called 'Come Outside' which featured the eccentric Lynda Baron (from Open All Hours) and her dog Pippin. Of course, anyone who watched the show would know that the same dog did not play the role of Pippin throughout the series. A dog called 'Mr Higgins', which was, I believe, a descendant of Pippin, also played the role.  Anyway I digress.

The death (whether it be of Pippin, Mr Higgins, or some other dog, or perhaps just a mistake) reminded me of a case I dealt with very early on in my career. I was representing a middle aged lady from North London who owned a dog which was not too dissimilar from Pippin. She was a lady of good character who had been charged with an offence under the Control of Dogs Order 1992. Yes, I'd never heard of it either. The offence was as follows:

"The owner of a dog or the person in charge of a dog who, without lawful authority or excuse, proof of which shall lie on him, causes or permits the dog to be in a highway or in a place of public resort not wearing a collar as prescribed in article 2(1) above shall be guilty of an offence against the Animal Health Act 1981."

The lady in questions dog was a puppy, albeit a boisterous one. It had, so the account went, escaped from her garden whereby she chased it up the street. She couldn't catch it. The dog was picked up by a dog warden and taken to the shelter. Because the dog was microchipped, the warden was able to locate the owner who came to collect the dog (she also had to pay a fee to cover the 'expenses' that the shelter had occurred). A week or so later she received a letter from the local council to say that she was being prosecuted under the aforementioned provision. She pleaded not guilty to the charge. Her defence was twofold: (i) the fact that the dog had escaped was beyond her control and therefore amounted to an 'excuse', and (ii) the dog did, in fact, wear a collar but it was able to take it off itself.

At my request, the dog was brought to court. I took it into the waiting room and watched as it bounced around and, sure enough, took its collar off the moment it was put on. Would it do it at trial?

The trial commenced and the point came where I 'called' the dog. This excited much amusement within the courtroom, with the Chairwoman remarking that if the dog 'did its business' I would be the one that had to pick it up. The collar was placed on the dog and the dog was let loose. True to form, the dog removed the collar within seconds. I thought I was on to something good here.

There was then an argument as to the standard of proof. The Crown said that the legal burden was on the Defence. I made representations that we simply bore an evidential burden which the Crown had to rebut beyond reasonable doubt. The Bench accepted my proposition.

However, did I win the case in the Magistrates' Court? No. The lady was convicted and given a Conditional Discharge. We appealed that decision to the Crown Court where the conviction was overturned and the Judge made a number of remarks about the costs involved in prosecuting this case.

So all's well that ends well.

I was pretty surprised that this lady had to go through two trials all because her dog had escaped. I also feel that the legislation is pretty outdated. I can understand why it is important that dogs can be identified through having a collar and tag but let us not forget that this lady had had her dog microchipped as most responsible dog owners now do. It seems to me that this was somewhat of a pointless (and costly) prosecution of a nice lady who, on the face of it, was a responsible dog owner.

Anyhow, now you can see the link between Pippin the Dog, Mr Higgins and a prosecution under the Control of Dogs Order 1992!

A surprise call

I'm back in the UK at the moment on holiday. Whilst here, I've taken the time to visit the parents; the consequences of not doing so are definitely worth avoiding.

Yesterday the phone rings and my mother asks if I can answer it. I pick up the phone to be greeted as follows (I will alter the names of all the participants):

"This is PC Smith. Can I speak with Mr Jones?"

"He's not here" I reply. "Can I take a message or get him to call you when he gets in?"

"He is supposed to be at X Magistrates' Court today. He was a witness to a traffic incident."

I looked at my watch. It was 11:30am.

"What time was he warned to attend?" I asked.

The officer hesitated slightly and then said "The trial was due to start at 10am but the prosecutor needs Mr Jones before the trial can start".

"Yes, but what time was he warned to attend?" I pressed.

A slightly longer pause before the officer continued: "We believe that the witness care unit called him about 2 months ago to tell him of the date and time."

And so the picture began to materialise. No-one knew whether he had, in fact, been warned to attend and, even if he had, it was "believed" that that occurred about 2 months ago.

"I will try and reach him" I said "and will call you to let you know. What number can I reach you on?"

"Dial 101 and ask to be put through to PC Smith at X Magistrates' Court."

"Ok" I say. "Goodbye".

I try to reach Mr Jones through several avenues. His mobile phone is going straight to voicemail and the few family members who I thought may have known of his whereabouts, didn't.

So I call 101 and ask to be put through to PC Smith at X Magistrates' Court.

"Does anyone know the number for X Magistrates' Court?" I hear the operator hollow in the background. It seems that nobody does and, somewhat incredibly, I am told that they don't know the number and suggest I look it up on the internet. Charming.

So I look up the number and call the Court. I'm put on hold for about 7 minutes whilst the officer is located. The officer then proceeds to tell me that I should not have called the Court directly and that I should have, as she had asked, gone through 101. As you can imagine, I am thus far wholly unimpressed with how this little exchange has been going.

"I did call 101- they didn't know the number. They were not prepared to find it for me and instead helpfully suggested that I look it up on the internet."

"Oh" replies the officer. "I am sorry about that".

Anyhow, I explain that I can't locate Mr Jones and that I do not know where he is. The officer then proceeds to tell me that his evidence is crucial and that the trial can't continue without him. Quite what she wants me to do about this I don't know.

"Can you continue to try to reach him and call me in 20 minutes to let me know if you have managed to get through?"

"Yes" said I. "How shall I reach you?"

"Dial 101" she says "and give them this extension...".

So I try and reach Mr Jones, fail to do so, call 101 and give them the extension. I come through to a different officer who says that PC Smith is in Court. He takes a message from me and says that he will get her to call me. She never does.

As of yet, I don't know what happened in Court. I'm tempted to call to find out.

I did, however, manage to speak with Mr Jones in the afternoon. He tells me that he had never been given the date of the court hearing and, had he known of it, he would certainly have attended. I have no reason to believe that he is lying about this and from the way the officer spoke on the phone, I strongly suspect that he hadn't been warned to attend. Furthermore, I didn't find the police particularly helpful. When I am giving up my time to assist them, the least they could do is put me through to the Court and not have a go when I choose to phone the Court directly. Also, quite why they were only phoning at 11:30am when the trial was due to start at 10am, I don't know.

If I find out what happened at Court, I'll be sure to add it by way of postscript!

Financial Penalties- are they worth the hassle?

I was in a civil court today where the Applicant, as he was known in this particular case, was appealing a decision of a lower tribunal. The court dismissed his appeal but, in doing so, noted that the three months he had been given to pay his USD100,000 financial penalty was a tad unrealistic. The Court varied the order to allow the Applicant to pay the penalty in ten monthly instalments of USD10,000 which he was happy about. It made me think about all those defendants who are fined (particularly in the Magistrates' Court) in the sum of (for example) £100 and ask to pay in instalments of £5 a week which is, invariably, to be deducted from their benefits. The phrase 'robbing Peter to pay Paul' comes to mind because, putting to one side compensation and victim surcharge payments, the money is simply going from one government department to another. However, when one considers the cost of administering the system- from the imposition of the fine, to its periodic collection, to its enforcement, the amount the government actually gets back must be a fraction of that which it handed out. I'd love to know the exact figures but I suspect they are difficult to analyse. It certainly wouldn't come as a surprise to learn that the associated administration costs actually exceed the amount of money coming in.

There is, however, a seedier side to the imposition and collection of fines. Two cases spring to mind. I was once sitting in a London Magistrates' Court waiting for my case to get called on and, whilst waiting, was watching a number of cases that involved unrepresented defendants. The first was a lady who pleaded guilty to possession of cannabis. She was fined £125, ordered to pay £85 in costs and the £15 victim surcharge was imposed. She was in receipt of Jobseeker's Allowance. "The full amount is due now" the legal advisor said. "I can't pay that much now" the lady replied. "Can it be deducted from my benefits?" "How much money do you have on you?" asked the Chair. I can't remember how much it was, but it amounted, so the lady said, to her bus fair. "Well you can pay that in to Court and you'll have to walk home or get a lift". The lady protested that she didn't know anybody and that it was far too far to walk home. She was then told that if she refused to pay her fare into Court she would be taken down into the cells. She burst into tears. Still the Chair and the Legal Advisor persisted that this £2.80 or whatever it was should be handed over. The tears got worse and enough was enough. "Please excuse me, but as an officer of the Court please could I address you?" I said. The Chair permitted it. I proceeded, politely but forcefully, to explain that what was going on here was pretty disgraceful. The lady was in tears, the Court was trying to seize £2.80 and was having no regard for how this lady was going to get home. Perhaps, I thought to myself, they would like her to commit fare evasion or theft? The Bench relented and agreed to take the money from the lady's benefits. The Legal Advisor looked most dissatisfied but there we are.

The second occasion involved an actual client. I was in a Magistrates' Court in Essex. My client had been convicted of assaulting a police officer. She was fined £75 but ordered to pay full prosecution costs (which were about £600) and, of course, the £15 victim surcharge. The Bench had taken umbrage with her because the nature of the assault was a spit (something many Magistrates seem to despise with a passion) and they felt that the evidence was overwhelming (i.e. the officer's word against hers) and so penalised her accordingly. This was despite the fact that she was a single mother living on benefits (namely Child Benefit, Housing Benefit and Tax Credits). She certainly was in no position to pay just short of £700 there and then but that didn't stop the Bench trying to get it. Their opening gambit was to (somewhat unrealistically) threaten her with prison. I managed to bat that one away without too much of a struggle. However, they then wanted to see her purse (she having said she had no money in it). To the client's credit, she duly provided it. There was nothing in it. Not content with that, the Bench made the point that they could have her searched by the dock officer. I confess that my patience was slowly deteriorating. I interjected again. After a bit of toing and froing they relented. However, they were not going to give up that easily. "Go to the bank" said the Chair "and get a receipt to show how much is in your account." There was then a rather unfortunate exchange between the client and the Chair but she duly went to the bank and produced a receipt. She had about £85 in the bank. "Well, we'll take that today" said the Chair. "You may have forgotten" I said politely "that Mrs X has two small children that she has to provide for". They seemingly had not forgotten but as seems to happen all too often the Chair came out with the line "well she will have to find somebody else who can either pay the fine or pay for the children- a friend or family member perhaps." I felt like screaming "HOW IS IT A FRIEND OR FAMILY MEMBER'S PROBLEM?". I didn't of course but it really gets to me when Magistrates expect the money to come from someone else. Why on earth should some poor person who has nothing to do with the case have to fork out the money? Anyway, this whole sorry episode went on for about half a day (won't somebody please think of the children cost to the public purse). Eventually, they settled on taking £5 (from a man in the public gallery who had no connection with the case but who was no doubt appalled at what was going on!) and agreed to deduct the remainder from her benefits.

Sadly these little incidents are not uncommon and it is usually people who are unrepresented who bear the brunt of them. So in short I have two general issues as regards the imposition of fines- (i) do the associated administrative costs in administering and collecting them outweigh the amounts involved? and (ii) please can we have a little bit more humanity when it comes to time to pay and not behave like some sort of extortion racket?

Answers on a postcard please.

Twitter- Chambers v DPP and Tom Daley

So, it has been nearly 5 months since my last post. The reason? I have fled the jurisdiction. Temporarily at least. I decided a change of scenery was in order so packed my wig and gown and headed off to the Middle East. I'm not sure how long I will stay out here but I have no doubt that I will return to the UK at some point.
The realisation that I had not updated my blog in such a long time only dawned on me yesterday amid the furore surrounding the tweets sent to Olympic Diver Tom Daley by some 17 year old boy who clearly had nothing better to do with his time than to hurl insults to someone who has clearly achieved more in his youth than this particular individual has or will ever do.

However, let us rewind a few days where Twitter was once again under the scrutiny of the lawyers following the Lord Chief Justice's Judgment in the case of Chambers v DPP [2012] EWHC 2157. In that case, the Crown Prosecution Service considered it prudent to charge Mr Chambers with an offence under s.127 of the the Communications Act 2003 after he had tweeted the following message to his girlfriend:

"Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"

Remarkably, not only was Mr Chambers charged, he was also convicted by the Magistrates' Court (a District Judge no less) and his appeal to the Crown Court was unsuccessful. Thankfully, the Lord Chief Justice, sitting in the Divisional Court, quashed the conviction. Quite apart from making the obvious observations that the tweet in question was (a) as far as Mr Chambers was concerned clearly meant as 'a joke' to his other half , (b) was not in any event sent directly to the airport, and (c) once brought to the attention of airport security had been deemed as 'non-credible', the LCJ observed at para 30 that:

"...After all a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace."

The Judgment was undoubtedly a victory not only for Mr Chambers, but also for common sense. Earlier in the Judgment, the LCJ observed, at paragraph 28, that:

"The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation."

Fast forward a couple of days where, three days into the Olympics, Tom Daley and Peter Waterfield come fourth in the synchronised diving. Tom tweets as follows:

"After giving it my all...you get idiot's sending me this...RT @Rileyy_69: @TomDaley1994 you let your dad down i hope you know that."

Tom's dad having died of cancer, this comment was undoubtedly intended to be hurtful. Unsurprisingly, Tom's fans (as well as those who were just appalled by what had been said) rallied to his defence and a Twitter campaign that @Rileyy_69 be banned from Twitter ensued. Undeterred, @Rileyy_69 continued with abuse such as "hope your crying now you should be why can't you even produce for your country your just a diver anyway a over hyped prick" and "sit you ass back down tommy and don't get on a diving board again my little brother could do better absolute waste of space."

However, once Tom's fans rallied together and a Twitter war was waged, @Rileyy_69 changed his tune:

"I'm really sorry :("

"Please I don't want to be hated I'm just sorry you didn't win I was rooting for you pal to do britain all proud just so upset."

The next day, the BBC reports that:

"A 17-year-old boy was arrested at a guest house in the Weymouth area on suspicion of malicious communications.

Dorset Police said they acted after being contacted by a member of the public at about 22:30 BST on Monday.

A spokesman was unable to confirm whether the arrest was specifically over the tweets to Daley or subsequent Twitter conversations with other users."

In the meantime, various people (including lawyers) were expressing their views on Twitter and through writing blogs about what had happened. A number of lawyers expressed the view that they were 'surprised' how the attitudes of people change in so short a space of time, i.e, how the public had only days earlier welcomed the Judgment of the LCJ in Chambers but were now horrified by what had been said by @Rileyy_69.

To be honest, lawyers should know better. The two cases are hardly comparable. Yes, they both involved the medium of Twitter but the similarities end there. In Chambers, the 'non-credible' threat had been aimed at Mr Chambers' partner, not the airport and was, on any sensible reading, a joke. @Rileyy_69 on the other hand chose to fling abuse at Tom directly. There was nothing funny about the content. There was no joke. He was simply being abusive. I've read two legal blogs so far which suggest that these comments were likely to be no more than a 17 year old venting frustration at the fact that Tom missed out on securing an olympic medal and who clearly regretted his actions as demonstrated by his public apology. That explanation does not, I'm afraid, stand up to scrutiny. First, a lot of people may have been upset that Tom didn't secure a medal but they certainly did not decide to tell him so in such a manner through the public medium of Twitter. Second, if one cared to look at @Rileyy_69's other, unrelated tweets, (as I did) it would have been immediately obvious that this particular Twitter user thinks nothing of using Twitter as a means to hurl insults and threaten violence to others. In fact the comments made to Tom were mild compared to other things @Rileyy_69 had said. Third, the idea that the apology amounted to anything more than an attempt to avoid getting into trouble is laughable. This is because (a) @Rileyy_69 had an established history of using vile and offensive language and (b) the apology only came after people had rallied in support of Tom and were trying to get @Rileyy_69 banned.

Whether this whole affair results in a court appearance nobody yet knows. Certainly if Mr Chambers warranted being charged, this particular Twitter user does. However, the police and the CPS will no doubt have the Lord Chief Justice's Judgment firm in their minds and will wish to carefully reflect upon it before they rush to make a charging decision.

Anyhow, it will be interesting to see what happens.

I will also make more of an effort to update my blog whilst I'm out here!

The End of the Week

It's been quite a long week and I must confess that I am relieved that the weekend is here. On Wednesday I had a couple of PCMHs at the Crown Court followed by a conference with a client who is charged with a rather serious drugs offence that is coming up for trial in June. Nothing out of the ordinary happened. On Thursday, however, I had a private driving trial to defend in the Magistrates' Court. The allegation was failing to comply with a traffic sign. The traffic sign in question is such that, even if convicted, the Defendant's licence is safe from any form of endorsement. The trial should have been easy and problem free. However, whilst at court, an issue arose which resulted in the trial being vacated and, would you believe, the need for me to be called as a defence witness. I best not go into the particulars but suffice it to say I'm quite looking forward to my witness debut. I'll update you once the trial has been and gone. Anyway, the weekend is upon us and so I shall allow you all to enjoy it!

Radio Silence and Contempt of Court

So, my apologies for not updating my blog recently but I've been involved in a trial at the Crown Court which only came to an end on Thursday. I'm far from convinced that the jury came to the right conclusion but I'll say no more about that. What is slightly more entertaining is what happened on Friday when I was asked to cover a trial at the Magistrates' Court. A straightforward Common Assault where the complainant and the defendant had at one time been in a relationship together. She alleged that the defendant had punched her; he denied it. Everyone turns up at 10am ready for a trial but in fact the court had listed the case for 2pm but hadn't thought to tell anyone. Anyhow, I'm sitting in the advocates' room when I notice some paramedics in the public area. I look out the door to see what's happening. It transpires that the complainant in my case was drunk and that the witness service had called an ambulance as they were concerned about her. She, however, had other ideas and refused to go with them. She did, however, leave the court building saying she would return later. True to her word, she returned at about 2:30pm having, it appeared, consumed more alcohol in the interim. There was a fracas at the front desk involving security, the complainant and some other people but eventually the officer in the case, with the assistance of the prosecutor, managed to usher her into the witness room. Now at this point you're probably thinking 'well surely the Crown are not going to call this witness?' A rational thought, but you'd have thought wrong. The trial is called on and in the complainant stumbles. She can barely take the oath and she leans on the witness box before slumping into a seat. The prosecutor carries on as if nothing out of the ordinary has happened and begins to ask questions. She hasn't got a clue. She can't remember the date or what happened. With some prompting she manages to utter the words 'he walloped me and I walloped him back but only he got arrested'. When the prosecutor attempts to further question her, she begins to swear and shout and starts to leave the witness box- heading for the door. The Chairman of the Bench tries to calm the situation but to no avail. Her choice of words has now become quite choice and the Chairman has had enough. Contemplating contempt proceedings, he orders the jailer to come up from the cells and take her away- which he does whilst trying to keep a smile from his face as her verbal abuse, now directed at him, continues. I then head off to the advocates' room to see if I can find a solicitor to advise her regarding the contemplated contempt proceedings. Meanwhile, the prosecutor is on the phone to the Borough Prosecutor trying to ascertain what to do. Unbelievably, you might think, the prosecution crack on with the trial and recall her to finish her evidence once the court has dealt with the issue of contempt. My cross examination only sought to set her off again so I kept it as short as practically possible. Finally she left the court-room never to return. Or so we all had hoped. I call the defendant to give evidence which he does. During the course of it, however, the complainant makes a return visit, as indeed does a 'random' member of the public who also joins in with a chorus of abuse of his own. Both are escorted from the building by the officer in the case. The defendant is acquitted and all's well that ends well. The Chairman, who had coped very well with all that had happened, thanked Counsel and remarked that at one point he thought he and his colleagues were being set up- one assumes in some sort of Beadle's About come Punk'd spectacular. I have to say, the very same thought had occurred to me. However, as there was no sign of the ghost of Jeremy Beadle or the boyish charm of Ashton Kutcher, I can only assume that Friday was nothing more than one of those days...

Conspiracies

I had an interesting s.51 hearing in the Magistrates' Court today- a chap charged with conspiracy to conceal criminal property, namely hundreds of thousands of pounds. The police investigation seems to have taken months although, notwithstanding that, the most the Crown could give me today was a charge sheet and case summary. Not that that bothered me particularly as the chap was on bail and thus there was nothing to achieve until the preliminary hearing in the Crown Court which, rather ambitiously, has been listed for next week. I doubt very much whether the Crown's case will be in order by then but we shall wait and see.

On another note, a point of interest arose today which is worthy of a mention. It concerns good old case management in the Magistrates' Court. Whilst I was waiting to get on today, a man pleaded not guilty to an offence of common assault. His advocate was asked by the Magistrates, at the instigation of the Legal Advisor, to agree the interview summary by way of section 10 admission. "I can't do that" said that advocate, "I haven't listened to the tape so don't know if it's accurate." The response from the Bench was truly bizarre- "well your client must know whether or not that was roughly what he said". "Roughly what he said"?! I mean, what is going on here? How negligent would you have to be to agree such an interview summary on the basis that it may 'roughly' reflect what your client said in interview? Police interviews are very important as everyone can appreciate- they are the first opportunity the suspect has to put forward an account if he or she wishes to do so and here we are, at court, being asked to agree a quarter of a page summary which may or may not accurately reflect what was said. For my part, I can say with certainty that I will never ever agree such an interview without first being sure that it is a true representation of what was said. I sincerely hope advocates don't find themselves in situations where they are being pressured into making admissions without first seeing or hearing the evidence. Don't allow yourselves to be bullied!

Psychiatrists and Paracetamol

What a start to the week it has been. I attended the Crown Court yesterday for what should have been a straightforward mention hearing. The Defence had, on an earlier occasion, raised issues concerning the Defendant's fitness to plead and, as a result, two psychiatric reports were obtained. One report concluded that the Defendant was certainly unfit to plead, the other was less conclusive and contained information about the Defendant which one certainly wouldn't want to put before a court. Accordingly, the first report was served and the second was not- the position was explained to the Judge at the PCMH and prior authority was granted by the LSC for a third psychiatrist to prepare a report and thus see where the balance of opinion lay. Judge 1 saw no problem with this approach and made directions accordingly. Today, however, the matter came before Judge 2 who took a quite contrary view. He opined that the Defence should serve the second report. This request was refused. Consequently, and some may think there was a bit of 'sour grapes' involved, the Judge purported to withdraw the LSC funding that had been previously granted for the third psychiatric report. As a result, the matter was put over to today for arraignment. As you can imagine, I was most upset by this turn of events and spent my Monday evening preparing a skeleton argument setting out why I believed that the Judge's direction was unlawful and why what had happened was tantamount to an abuse of process.  I don't usually get headaches but I had one last night. However, two paracetamol and a bottle of water later, I finished my skeleton argument and went to bed.

The Judge had thus far won the battle, but I was prepared to win the war. I went to court this morning ready for a showdown but I was to be disappointed (whilst at the same time being relieved). I served my skeleton argument first thing and gave the Judge time to consider it. When he came in to court he apologised for what had transpired the previous day and withdrew his order. He was extremely gracious about it and that made me feel much better. I had gone away from court the day before feeling pretty deflated and the rest of my Monday had been ruined as a result of having to consider and prepare for a further round the following day. However, the matter has now been resolved and I can move on. I have a sneaking suspicion that this particular case may yet cause further difficulties in the future but we'll wait and see.

On a brighter note, it's Shrove Tuesday today which means pancakes for dinner. Always a delight.

You have to laugh...

The end of the week is near. I started the day with a trial which didn't get off the ground- the Crown ended up offering no evidence on a charge which, if even it had gone to trial, they would never have been able to prove. I sometimes wonder who, if anyone, reviews these cases. Anyway, I got back to Chambers fairly early and was preparing for a trial coming up next week when I got a phone call at 3:30pm. It was my clerk. "Sir" he began. Now when your clerk calls you 'Sir', it usually means that they are about to ask you something which they know you're not going to be happy about. "Do you mind heading up to the Magistrates' Court. There's someone in custody and all the lawyers have gone." So off I go. I get there and speak with the prosecutor. The Defendant is facing an indictable only offence and so will be sent forthwith to the Crown Court. A cursory reading of the papers reveals, among other things, that he is said to have jumped from the top of  a three story building in an effort to make good his escape. I go down to the cells and spot him straight away sitting on a bench with his leg completely in plaster. I decide to avoid any questions about the leg. I take instructions regarding bail and head straight back up to court- it now being gone 5pm. The Crown, predictably, object to bail. I take one look at the Defendant and say "look at him- he's not going to commit further offences, he can hardly walk." This one-liner seems to do the trick and he was released with a stern warning from myself to behave. I never know if that has any effect at all but it's worth a go. Him and his family seemed to take a shine to me, so hopefully I'll see them all again in the Crown Court. Well it's late and I must go. Friday tomorrow which is always a bonus.

Valentines Day

Far from receiving a card with "I love you" emblazoned across it, this morning I was handed a glossy brochure which contained the names and photographs of two youths- underneath the pictures were the words "The Courts have issued them with an Interim Anti-Social Behaviour Order". Happy Valentines Day indeed. I wasn't sure what to make of said piece of literature. On the one hand, I don't care that these two boys have been given interim ASBOs, on the other I'm questioning whether or not it's right to send round the names and photographs of people who are under 18 and broadcasting to the public that they have been given interim ASBOs. I mean, quite apart from anything else, the court hasn't even made a final determination on the matter- it's an interim order and yet all and sundry in the local area are being told about it. Is this right? I'm debating whether to investigate the matter further. I mean it has nothing to do with me at all but that doesn't usually stop me from interfering. I think I had better investigate the legality of such distributions for my own peace of mind if nothing else. Sad really. Anyway, on a related point, my ASBO hearing today hasn't started owing to an overburdened list. Hopefully we'll get going this afternoon although it wouldn't surprise me if we end up being adjourned.

ASBOs

Well today was disappointingly dull. I attended the Crown Court for a PCMH but it had been taken out of the list at short notice and nobody had thought to notify the clerks or update the Daily Court List. Never mind. I had a lot to do in Chambers so was happy to spend the rest of the day preparing for the week ahead. I have a trial in the warned list (which hasn't come in yet) so tomorrow I have a contested ASBO application to deal with which is due to last all day. Sigh. I thought ASBOs were going out of fashion. I believe it was the 28th May 2010 that Theresa May gave her speech to the Coin Street Community Centre in London entitled 'Moving beyond the ASBO'. I recall one part of the speech as going-  "For 13 years, politicians told us that the government had the answer; that the ASBO was the silver bullet that would cure all society’s ills. It wasn’t." But what has been done about it? The lower courts regularly impose them upon applications being made- applications which are largely based on uncorroborated hearsay I hasten to add. The Crown Court usually (although not always) treats such applications with a little more circumspect. The High Court and the Court of Appeal have to mop up all the unlawful ASBOs and those which contain ludicrous terms. Take the proposed ASBO which I am dealing with tomorrow. It contains 10 prohibitions, 6 of which are already offences known to the criminal law. 3 of them are appallingly written - I can only just guess at what they are trying to prohibit so it is highly unlikely that the individual concerned will be able to comprehend them. The other hopes to prohibit him from "hanging around" with one or more of 20+ named individuals- all of whom are his friends. The most depressing part- the Magistrates' Court will probably grant it (unless perhaps it goes before a District Judge) and off I will have to trot to either the Crown Court or the Divisional Court to remedy the matter. I'll be sure to update you tomorrow to let you know. Sorry for the rant but I felt it was necessary. I hope everyone else has had a slightly more entertaining day.

Judicial Modes of Address and an Enthusiastic Usher

Well today has been a fun Friday. This morning I was before a High Court Judge who was sitting in the Crown Court. I'd been before the same Judge on a number of previous occasions. I went into court and shuffled my way along Counsels' row. I looked down and saw the following stuck to the inner side of the bench:  "REFER TO HIS LORDSHIP AS 'MY LORD". I had to laugh. You see you can spot a High Court Judge a mile off owing to the robes that he is wearing and that the list outside says 'Mr Justice X'.  Also, the reminder was potentially confusing as, depending on the context, you may wish to refer to 'my lord' as 'your lordship' or you may wish to refer to 'his lordship' as 'my lord'. You get the point. I've never seen a Judge get angry if you get his title wrong, although I have heard horror stories from other Counsel. If in doubt, go up I say. You often hear unrepresented defendants referring to District Judges as 'Your Honour' and the Judge never corrects them. They probably quite like it.

Anyway, having sped through my morning matters, I rushed off to the Youth Court for an afternoon trial. The Defendant had previously pleaded guilty to a number of matters and was standing trial on a single offence to which he maintained his innocence. We went into court and sat down. The usher announced the case and for reasons best known to herself told the Magistrates that Master X had previously pleaded guilty to offences A, B and C and was here in respect of offence D. All credit to the Chairman who said 'Well that's that- we can't hear the trial now. It wouldn't be fair on the Defendant.' And thus the matter was adjourned. It was so refreshing to hear the Chairman say that as you often get the line 'we can put that out of our minds'. What a load of old nonsense that is but I might return to that subject on another day.

Unrepresented Defendants

What a horrendous and tedious morning I am having. Whoever thinks that legal aid should be refused in summary non-imprisonable road traffic offences needs to witness what I am witnessing. A busy traffic court starts with an unrepresented defendant who is charged with leaving his vehicle in a dangerous position. The issue appears to be a simple one- yes the car was there, yes it was mine, but no it wasn't in a dangerous position. The examination in chief of the officer took about 10 minutes. The cross examination, however, went on for about 45 minutes. An advocate could have achieved the same net result in 5 minutes and would, quite probably, have ensured more helpful answers. The Defendant then proceeds with his defence- this lasts for just under 30mins. The magistrates retire for 10 minutes, return, and convict him. They observe, amongst other things, that the officer is credible and that the defendant is not and thus he is convicted. I did mention that the Defendant was unrepresented. Did I also mention that English clearly wasn't his first language and he didn't have an interpreter? Anyway, we then have to go through sentencing, with the defendant explaining in minute detail his daily outgoings etc. There then follows an enquiry as to whether or not the defendant has points on his licence- there being no up-to-date DVLA printout before the court. All in all, this sorry state of affairs goes on for just over 2 hours. It should have taken no more than 30 minutes, 45 at most. As a consequence, the court undoubtedly would not have finished its list- it having another 5 trials in the list plus two other matters. So, does refusing legal aid to people in situations such as the present, save the court service money? Answer- surely not.

Lead by example, or perhaps not...

I was in a mischievous mood today. I perhaps wouldn't have been but for what happened moments before my trial was due to start. It was about 9:15am and I was sitting in court on my own. A police officer walked in accompanied by a number of junior recruits. "Listen up" he said. "None of you have experience of giving evidence in court. I'm going to show you how it's done." My ears pricked up. "The thing to remember" he continued, "is to just stick to your statement. No matter what the defence lawyer says to you, just stick to your statement." Hmm, I thought to myself. And so the trial began- a simple matter of using a mobile phone whilst driving. Oblivious to the fact that I had been in court earlier, the officer gave his evidence in chief in accordance with his statement. I stood up to cross examine him. "According to your statement, you stopped Mr X on the 12th March, is that correct?" "Yes" he replied. "Are you 100% sure about that?" I pressed. "Of course, I recorded the date in my statement." he retorted. I passed him up the Fixed Penalty Notice which he had signed and dated the 12th May. "Look at this I said". He looked at it and then glared at me. "You see the problem." I queried. The officer simply nodded. "So in what month did you stop this vehicle- March or May?" He wasn't sure whether the mistake had been made in his statement or on the Fixed Penalty Notice. Knowing that it was game over for the Crown, I should have left it there. I couldn't help myself though. "You said that your police car was parked in the space directly outside the Co-op?" "Yes" he said. I handed up a photograph of said space which clearly had 'DISABLED BAY' marked across it in big capital letters. "Did you have your disabled badge on display?" I queried. The officer was not happy, particularly when I went on to point out which traffic regulation he was in breach of  and that he would do well to learn the rules of the road before handing out Fixed Penalty Notices to other motorists. You may think I was being childish and perhaps I was. But it serves him right as far as I am concerned. And it gave everyone in court a good laugh, junior recruits included.

Snow

I do like snow. However, I've come to beleive that the legal profession is perhaps one of the most affected professions when it comes to adverse weather. A strange claim to make you might think but consider the following in the context of a Crown Court trial which is well underway. To be effective, you need the following people- the Defendant (preferably!), the Judge, Defence Counsel, the Prosecutor, the 12 members of the Jury, the Witnesses in the case, the Court Clerk, and, ideally, the Usher, Officer in the Case and all the administrative support staff. Now, past experience has shown that when it snows, at the very least, one of the aformentioned people won't make it to court. And without that one person, it is unlikely that your trial will continue.

I remember the year before last I had travelled to Harwich Magistrates' Court. The weather was horrendous. It was a long trip to Dovercourt train station but I made it. The roads were too icy to call for a taxi so I had to walk (case in hand) up to the court which sits atop a fairly steep hill. I managed to get there only to be greeted by a security guard who said, and I quote, "oh, the local magistrates can't make it because of the weather". I shall not repeat my reply. Suffice it to say, I considered there to be no excuse for not making it when I, who was travelling the greatest distance, had managed to get there safely. It does, however, prove the point of this post- snow invariably prevents court cases from going ahead- at what cost to the taxpayer I'd be interested to know.