London Advocate Issue 69

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    LondonAdvocateThe newsletter of the London Criminal Courts Solicitors Association

    MAY 2012 NUMBER 69

    Editorial

    LCCSA Notices and News

    Greg Powell Retires from

    Committee

    Presidents Report

    Interview: HHJ Radford

    Serving Justice? Academic Analysis

    of Stop Delaying Justice!

    Its All Greek to Me: the

    Interpreter Debacle

    Law Report

    Book Review

    Letter to the Advocate

    Knowledge of Guilt

    2

    3

    4

    6

    8

    9

    10

    12

    11

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    What I hope will be a sunny June will set the scene for

    the Jubilee celebrations meaning a well-deserved

    extra holiday for our members and the courts.

    The Jubilee will, once again, demonstrate how special

    London is in the life of the UK and how different it is

    from every other major city in the country. This also

    applies to its lawyers, who have to travel long distances

    between well-scattered offices, widely-spread courts

    and several prisons. Compensation for their time and

    trouble is now a thing of the past and yet our lawyers

    still struggle on, remunerated less well, working harder

    and having to cope with one initiative or innovation

    after another.

    Our major articles in this issue ponder on the

    incompetence behind two recent debacles the video

    training for "Stop delaying justice!", analysed for us by

    eminent academic, Jenny McEwan, and the chaos

    which has resulted from the MoJ's attempt to save

    money for the services of interpreters, described by

    Rebecca Niblock, a committee member with day-to-day

    experience of what has been going on at Westminster

    magistrates'court.

    One of the doughtiest fighters in the LCCSA's cause

    and a much-needed voice of reason in the debates

    over the past few years has announced his

    retirement. It is difficult for members to imagine what

    the association will be like without the tireless efforts,

    incisive intelligence and wry humour which we have

    enjoyed from executive officer and past president,

    Greg Powell. To say that we shall miss him is an

    understatement. This issue carries tributes to him,

    both from our current president, Jim Meyer, and a past

    president, Paul Harris.

    Our immediate past president, Malcolm Duxbury,

    has also been busy, interviewing HHJ Radford about

    current developments at Snaresbrook Crown Court: as

    ever, our work goes on!

    Nicola Hill

    Kingsley Napley

    2 MAY 2012

    Advocate

    Editorial

    PRESIDENT

    Jim Meyer

    Tuckers Solicitors

    39 Warren Street

    London W1P 5PD

    DX 123596 Regents Park 3

    T 020 7388 8333

    E meyerj@

    tuckerssolicitors.com

    PAST PRESIDENT

    Malcolm Duxbury

    Victor Lissack Roscoe &

    Coleman

    70 Marylebone Lane

    London W1U 2PQ

    DX 9020 West End

    T 020 7487 2505E malcolmduxbury@

    victorlissack.co.uk

    VICE-PRESIDENT

    Akhtar Ahmad

    ABV Solicitors

    Union House

    23 Clayton Road

    Hayes UB3 1AN

    DX 44650 Hayes (Middx)

    T 08445 879996

    E akhtar.ahmad@

    abvsolicitors.co.uk

    JUNIOR VICE-PRESIDENT

    AND EDITOR OF THE

    ADVOCATE

    Nicola Hill

    Kingsley Napley

    Knights Quarter

    14 St Johns LaneLondon EC1M 4AJ

    DX 22 London/ChanceryLane

    T 020 7814 1200

    E [email protected]

    TRAINING OFFICER

    Jonathan Black

    BSB Solicitors

    5-7 Euston Road

    London NW1 2SA

    DX 37905 Kings Cross

    T 020 7847 3456

    E [email protected]

    SECRETARY

    Melanie Stooks

    TV Edwards LLP

    Park House

    29 Mile End Road

    London E1 4TP

    DX 300700 Tower Hamlets

    T 020 7790 7000

    E melanie.stooks@

    tvedwards.com

    TREASURER

    Anil Rajani

    IBB Solicitors

    Capital Court

    30 Windsor Street

    Uxbridge UB8 1AB

    DX 45105 UxbridgeT 08456 381381

    E [email protected]

    SUB/COMMISSIONING

    EDITOR

    Gwyn Morgan

    Max Findlay Associates

    T 020 8870 0466

    E gwynmorgan@

    maxfindlay.com

    ADMINISTRATOR

    Sandra Dawson

    PO Box 6314

    London N1 ODL

    DX 122249 Upper Islington

    T 020 7837 0069

    E [email protected]

    LCCSA WEBSITE

    www.lccsa.org.uk

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    ANNUAL DINNER

    The assocation's annual dinner will take place on 6

    July 2012 at the Sheraton Park Lane hotel, Piccadilly.

    The after-dinner speech will be given by Jim Sturman

    QC.

    AUTUMN CONFERENCE

    The LCCSA European conference will take place in

    Malaga, from 12-14 October 2012. The principal

    speaker will be Anthony Edwards.

    ACCREDITATION

    The LCCSA and the School of Law at Swansea

    University are collaborating to provide association

    members with accreditation as court duty solicitors

    and police station representatives.

    Fees will be reduced by 20% for LCCSA members.

    There will be monthly assessments in London at

    Charter Chambers. These will cover critical incidents

    tests, interviewing and advocacy assessments and the

    written examinations.

    The dates for assessment in London for the next

    three months are 21 and22 May, 11 and 12 June, and

    3 and 4 July.

    COMMITTEE MEETINGS

    These meetings are held monthly, on Monday

    evenings. The next three meetings are on 14 May, 11

    June and 9 July.

    The venue is the offices of Kingsley Napley and

    meetings start at 6.30pm. All members are welcome

    to attend.

    LECTURE

    Lord Justice Hooper is to give a lecture, entitled Half aCentury of Crime a Valedictory Summing Up, at

    Inner Temple Hall at 6.30pm on Monday 18 June.

    All information on training events can be found on

    the LCCSA website: www.lccsa.org.uk

    APPLYING FOR MEMBERSHIP

    It is now much easier to join the LCCSA. Those

    enrolled as solicitors no longer need to be nominated

    and seconded: a simple application to the

    administrator will be all that is necessary. Those

    applying to become associate members will need just

    one person to nominate them, instead of two. Thischange is with immediate effect.

    LIFE MEMBERSHIP

    It is with great regret that the LCCSA has been told

    that Greg Powell is to retire as executive officer, after

    an unrivalled period of service to the association. He

    has been made an honorary life member of the LCCSA.

    CONSULTATION EXERCISES

    In recent months, the LCCSA has submitted responses

    as part of consultation processes by the Sentencing

    Council, on the introduction of guidelines for

    dangerous dogs offences, and by the Home Office onforced marriages. The consultation exercise on

    dangerous dogs will lead to the timely provision of a

    sentencing framework for offences which are at

    present very topical and for which no guidelines have

    previously existed. The consultation on forced

    marriages is far more controversial as the

    government seeks to criminalise an act which has, to

    date, only been subject to civil enforcement.

    At the end of March, the Ministry of Justice

    announced a major consultation initiative focusing on

    toughening community penalties and reforming the

    probation service. The LCCSA sentencing sub-

    committee will meet to draft a response and, as ever,input from members would be most welcome. Also, it

    is not too late to participate in preparing the

    association's response to the proposals to create

    tougher sentences and controls on the importation

    and supply of firearms. Any member wishing to play a

    part in this process should contact Tony Meisels:

    [email protected]

    EXTRADITION ROTA

    Jonathan Black and Rebecca Niblock have been

    working on behalf of the LCCSA to improve the

    position for those facing extradition. Jonathan hasbeen in correspondence with Howard Riddle, the

    senior district judge, about the need for a rota of

    specialist extradition lawyers to work as duty

    solicitors in Westminster magistrates' court, which

    has to deal with around 1700 extradition cases per

    year. Howard Riddle agrees that there is a need for

    such a rota and the idea has been proposed to the

    Legal Services Commission.

    OLYMPIC DATES

    Many courts will be operating different hours from

    usual during the course of the Olympic games. For fulldetails, please see the LCCSA website: www.lccsa.org.uk

    3MAY 2012

    Advocate

    LCCSA Notices and NewsMore news on the website: www.lccsa.org.uk

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    4 MAY 2012

    Advocate

    Presidents Report

    MORE ROLES FOR CROWN PROSECUTIONSERVICE

    As from 1 April, the CPS has taken on the prosecuting

    functions of both the Department of Health and the

    Department of Work and Pensions.The work transferred includes the prosecution of

    benefit fraud offences by the DWP and some local

    authorities.

    This means that the CPS workload is likely to

    increase by around 1,100 cases per year, doing work

    which was previously done, in the main, by solicitors'

    firms.

    COMPLIANCE COURTS

    Southwark Crown Court is now running two

    Compliance Courts, on Tuesdays and Fridays at

    3.30pm, which may be notified if any order is not

    complied with by the CPS. Although CPSrepresentatives will be obliged to attend, defence

    solicitors will not have to do so. This innovation should

    limit requests for "mentions".

    For more information, contact the Court's temporary

    case progression officer, Gruffydd Waldron, on 020

    7522 7268 or the listing officer at

    [email protected]

    Greg Powell

    To a large extent, Greg has been the life and soul of

    the LCCSA for many years. He has served on the

    committee in a number of roles, including vice

    president and president, and has been the executive

    officer for the last four years.

    The association and indeed the profession is

    hugely indebted to Greg for the work that he has

    done. He has represented the LCCSA in a number of

    different forums, including regular meetings with the

    Legal Services Commission, the Ministry of Justice

    and the Law Society. He has also been our voice in

    many cross-agency discussions on recent initiatives,such as "virtual courts" and litigator fee schemes.

    Greg is the master of both the written and spoken

    word. He has prepared detailed and highly articulate

    responses as part of many consultation processes. He

    has regularly lectured to members on the wave of

    legal aid changes that we have had to endure; and his

    lectures are always informative, original and

    humorous.

    The association has been lucky to have Greg as an

    advocate of its interests. He has never been shy at

    meetings (in particular with the Commission) to

    expose the flaws in new proposals through carefully

    reasoned and well informed arguments. There have

    been occasions when it has been necessary to say it

    as it is; and Greg has always been willing and

    prepared to do so, cutting through the flannel,

    bureaucracy, weak excuses and management-speak

    that we have to listen to as some agency or other

    explains why another initiative has gone wrong or

    caused the defence unnecessary loss and

    inconvenience.

    Greg is greatly respected throughout the

    profession and is highly regarded by all the other

    agencies that we have to deal with. He has helped,worked with and encouraged many of the LCCSA's

    leaders, giving up much of his own time on behalf of

    the association. His contributions and witticisms will

    be missed at committee meetings.

    We know it will be hard for him without us(!)

    We hope to continue to see Greg at our events and

    conferences and again thank him and, indeed, his

    firm for such outstanding long-term work and

    support of this association.

    Paul Harris

    Edward Fail Bradshaw & Waterson

    Greg Powell, who has served on the association's committee as executive officer, has retired

    This is my third report as president and I cant help

    but wonder where the time has gone. I hope that

    readers visit www.lccsa.org.uk on a daily basis to

    keep abreast of developments affecting criminal

    solicitors since February, nearly 800 news articles

    have been posted! Notable stories include:

    the new silks list and the absence of any

    solicitors; the AGs acceptance (finally) that extradition

    reforms are on the cards, and in particular the

    one-sided US extradition treaty;

    the concessions gained during the passage of the

    Legal Aid, Sentencing and Punishment of

    Offenders Bill, despite Ken Clarkes pithy were

    taking legal aid away from lawyers comment;

    the court clerk who turned to Google to fill the

    interpreting gap created by the new centralcontract for courtroom interpreter services (the

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    MoJ must surely win the prize for the

    understatement of year when it described the chaos

    as teething problems);

    the 1,000 milestone for people jailed as a result of

    the riots; the agreement reached on the model of the quality

    assurance for advocates (QASA) scheme under

    which all advocates who undertake Crown Court

    trials will have their performance assessed live in

    court by a judge.

    Greg Powell

    It is with much sadness that I report the retirement of

    Greg from the committee and as the associations

    executive officer. He has represented the interests of

    the capitals criminal solicitors well and will be sorely

    missed. I know everyone will join me in thanking him

    for his tremendous efforts over many years. Fear not,

    however: if you practise in London you will almost

    certainly bump in to him at court or the police station,

    and, if youre really lucky, he may regale you with one

    of his favourite poems!

    Criminal justice efficiency programme(T3)

    Most police forces are now transferring the majority of

    their case information to the CPS electronically, and

    magistrates courts are apparently ready to receivedigital case files from the CPS. Crown Courts hope to

    achieve this capability later in the year.

    A number of issues are yet to be resolved to ensure

    effective participation by the defence; but much

    progress has been made. Over the years, I have been

    part of various working groups and committees, but

    the determination and genuine resolve by the various

    stakeholders working on this programme stands out.

    Whilst the issue of financial assistance and the capital

    investment required remains live (the first years

    cost to my firm alone would be an estimated 163,000,

    with recurring yearly expenditure of 33,000

    thereafter), some of the other main obstacles have

    been removed:

    A new Prison Service Instruction provides central

    authorisation to allow the use of sound recording

    devices and laptops, even if fitted with a webcam

    and WiFi enabled.

    ACPO has issued guidance so that the presumption

    is that a solicitor can retain and use their mobile,

    electronic communication or recording device,

    including laptops when in the secure custody area

    and during private consultations with detainees. The relevant funding order has been amended so that

    practitioners will receive the same fee, regardless of

    the format of served documentary evidence.

    Abolition of committal fees

    Notwithstanding the tremendous efforts of the Law

    Society, Paul Harris and David Sonn, the profession

    has lost its challenge in relation to the decision to

    abolish the 318 committal fee. Despite hearing that

    defendants are being left unrepresented in magistrates

    courts, Lord Justice Burton and Mr Justice Treacy

    adopted almost wholesale the Lord Chancellors

    argument.

    This decision reinforces the urgent need for an

    independent assessment of the impact of the

    governments cuts to legal aid. I echo the House of

    Commons Public Accounts Committees complaint that

    the government has not identified the behaviour

    changes which may arise from the new legal aid

    arrangements, and urge it to do so.

    Criminal Procedure Rules

    The Law Society has revised its practice note on the

    CPR 2011 in the light of the Court of Appeals decision

    to uphold a wasted costs order against a

    Buckinghamshire firm arising from its failure to serve

    an application in opposition to a hearsay notice (R v

    SVS Solicitors [2012] EWCA Crim 319). This is

    essential reading for all practitioners.

    Upcoming events

    I hope you will all join the committee at the

    associations annual dinner at the Sheraton Park Lane

    hotel on 6 July, even if its just to watch me make a

    spectacle of myself as I fumble through my speech!

    The dinner is always excellent value and provides a

    unique opportunity for members to network with

    colleagues and the judiciary.

    This years European conference (12-14 October) is

    also a must, and Malaga has an elegance and historywhich is sure to add to the occasion. Tony Edwards

    (from TV Edwards) will be updating delegates on

    changes to criminal law and practice and Jeffrey Smele

    (from Simons Muirhead & Burton) will present a

    seminar on dealing with defamation, privacy and

    contempt issues in the internet age. As with the annual

    dinner, this weekend provides an excellent networking

    opportunity, giving you the chance to mingle with

    colleagues in a relaxed and informal environment. You

    will also earn five CPD points into the bargain!

    Jim MeyerTuckers Solicitors

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    HHJ Radford is resident judge at Snaresbrook Crown

    Court. He spoke to Malcolm Duxbury.

    Q: Have you been having any difficulties with

    interpreters recently?

    A: Yes, most certainly. In this building, we have been

    badly affected by the change to one contractor and

    Ive ensured that the difficulties have been

    communicated to the senior presiding judge and to

    the management of the courts and tribunals service.

    Indeed, I have personally spoken about them to Lord

    Justice Goldring.

    The change was piloted, I understand, on one circuit,

    the Northern circuit, and it was thought that the

    change would not be problematical but they didntsufficiently have in mind the whole country. It was

    introduced without the full board approval of Her

    Majestys Courts and Tribunals Service, including the

    judicial representatives. I believe the contract is now

    being monitored on a weekly basis.

    Q: How highly do you rate the quality of the

    advocates who come before you? Would you like

    to be a judge taking part in QASA assessments

    during hearings?

    A: In general terms, advocates vary from the very

    good to the poor. This is across both sides of the

    profession, solicitors and barristers, employed andindependent.

    Judicial evaluation has been agreed between the

    professions and the monitoring group and I think the

    advisory group under Lord Justice Thomas. I dont

    know that the Council for Circuit Judges has indicated

    any collective view so that remains outstanding. The

    way in which the scheme is now going to be

    structured, with categories 3 and 4 essentially those

    that are going to be monitored in the Crown Court

    and affecting all advocates, may mean that some of the

    concerns that some circuit judges had may be

    ameliorated. Certainly, with the CPS grading exercise,

    one of the concerns we had was that the employedadvocates for the CPS were not being assessed but

    only the self-employed, and we believed it should be a

    level playing field.

    I hope, if the forms are not too onerous, that, given

    that this is something the regulators require to be

    done, colleagues will agree to take part. I wouldnt say

    that Im enthusiastic about another thing to do but I

    recognise that, obviously, we are the consumers of

    advocacy in the Crown Court the jury are the

    principal consumers but we also are and its in our

    interests to maintain and indeed improve standards

    and, if we can find some fair and objective basis for

    doing that which involves our participation, we should

    co-operate; but I cant guarantee that all my

    colleagues on the circuit bench would share that view.

    Q: Does Snaresbrook have the largest number of

    courts under the care of one resident judge? What

    are the problems you encounter?A: Theres always been an argument between

    Liverpool and Snaresbrook as to which is the largest

    court. Liverpool may have more Crown Court rooms

    than we do but, if you were to ask how many, over the

    year, were occupied with work, I think you would find

    there were more in Snaresbrook: we normally have

    19 courts, occasionally 20.

    We certainly have problems with the fabric and

    maintenance of the building, which began life as an

    orphanage and a school. And the way in which the

    place is set out in terms of new technology video-

    link, remote rooms for witnesses has had to be done

    in a building which was not purpose-built. But wereblessed with being in pleasant surroundings, with the

    lake and all the rest of it.

    There are rumours of ghosts wandering the

    corridors on dark afternoons, of boys who met

    unhappy deaths when they were boarders here in the

    nineteenth century; but I think these are stories told

    to frighten new ushers.

    Q: What problems may arise when the courts

    work in a paper-free environment?

    A: Its a question of whether it happens. I certainly

    think that getting to that point is going to be

    problematical because Im not sure that well be able

    6 MAY 2012

    Advocate

    Interview with David Radford

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    to operate without paper unless everybody has the

    necessary equipment on both sides of the court and

    on the bench. But, even so, I wonder what will happen

    to the papers that are not in the CPS core bundle.

    It will be a burden to the courts service to have to

    print out papers which previously had been supplied

    by the CPS. Given the financial situation and the staff

    situation, I dont welcome that.

    Q: What are your views on schemes to reduce

    cracked and ineffective trials?

    A: I think the guilty plea scheme may help. Ive

    certainly been impressed with the apparent results

    from other courts, including Liverpool and

    Birmingham. Im not in any sense averse to seeing

    how far we can improve matters in relation to London.

    What we want to eliminate is delay and

    misunderstanding. Sometimes people dont pleadguilty because they may have a misapprehension as to

    what that involves in terms of sentence and, if that

    mystery can be dissipated, consistent with people

    making a free choice as to what they wish to do, that

    would help. And we dont want witnesses having to

    come unnecessarily to court.

    Obviously in terms of early guilty pleas, the focus

    has mainly been on the extent of the plea credit which

    can be obtained and eliminating the

    misunderstanding about that. There is some debate as

    to how the first reasonable opportunity is

    understood. I would welcome anything from the Court

    of Appeal to clarify that. Some are saying its whenbeing interviewed at the police station; others are

    saying it cant be before the charges are named. How

    on earth can you indicate guilt in court terms when

    you are not yet faced with the charge that is being

    brought to court? There is the distinction between the

    credit you should get because you are not wasting

    resources and the time of the court, if you plead guilty

    at the first reasonable opportunity, and the second, an

    element of mitigation, not part of the sentencing

    council guidance, which is if there is confession,

    contrition and remorse shown at an early stage.

    Q: Do you think that too many minor cases are

    being heard in the Crown Court?

    A: Sometimes, yes, I think people may elect trial and

    then they plead guilty in the Crown Court when they

    could have pleaded guilty in the lower court. I dont

    think that theres any prospect of the right to elect

    trial for either-way offences being restricted by any

    legislation. The Coalition Agreement included support

    for trial by jury and I have every reason to believe

    there will be no legislation which will change the right

    to elect. I say that with considerable confidence.

    But there will be consideration about the many

    cases which come to the Crown Court when themagistrates decline jurisdiction. There is concern

    when people are found guilty or plead guilty and the

    sentence passed by the Crown Court is within the

    magistrates sentencing powers. The magistrates

    could be restricted in declining jurisdiction if the

    value of the property taken was less than a certain

    amount but reserving the defendants right

    nevertheless to say that he wants the case to go to the

    Crown Court to be tried on indictment. That I think

    may be a live proposition.

    Q: As chair of the Olympics working group, do you

    think there has been enough planning for the

    effect of the Olympics on the work of the courts?

    A: No-one quite knows what, in criminal justice

    terms, we may be faced with. We do know that there

    will be considerable disruption in London to normal

    transport services and in terms of the police and

    other emergency services, which has led to theconclusion that the Crown Courts and magistrates

    courts most affected will have a much reduced

    number of courts. Seeing as the Crown Court has an

    allocated number of sitting days for the year, we shall

    make up for that later.

    In the four and a half years Ive been involved in

    this, I have been anxious to avoid a legacy of serious

    cases connected with the Olympics that might last a

    very long time after the games were over. That would

    besmirch the legacy of the games and might affect the

    perception of this countrys ability to deal with all

    aspects of a competition of this sort. This is why we

    have the Olympics offence definition and also thecommitment to give such cases priority and the

    realisation that, because such cases have no

    particular local community connection in London,

    they can be tried in some other place in England and

    Wales.

    Q: What is your career history?

    A: I read law at Cambridge, came to the bar, with a

    mixture of work which, in the 1970s, was very broad.

    I did civil work of a common law kind and criminal

    work all the way through my practice which is now

    very difficult to do. I did a good deal of crime,

    prosecuting and defending. Then I became anassistant recorder and recorder and now Ive done

    almost 16 years, believe it or not, as a circuit judge

    and ten years as resident judge.

    I also sit in the Court of Appeal which is clearly

    completely different from sitting with a jury. It is very

    interesting reading how other judges have summed up

    a case or how theyve sentenced people in different

    parts of England and Wales. And it involves discussions

    with three judges: there are no dissenting judgments

    in the criminal division so there has to be give and take

    at times. Its hard work, a lot of reading. Ive learned a

    lot from it. I hope that what the Crown Courtjudiciarys involvement in the Court of Appeal brings

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    Serving Justice?An academic analysis of the effects of the Stop

    Delaying Justice! initiative

    Research suggests that there are obstacles to defence

    compliance with the demands of case management, in

    terms of such practical matters as the ability and

    willingness of the client to assist, or the timing of

    legal aid decisions. While prosecutors and judges tendto see the process as administrative, defence lawyers,

    despite supporting the principle of co-operation

    between participants and acknowledging the need for

    an efficient criminal process, think more

    adversarially: thus the obligation to the court might

    give way to their perception of their obligation to the

    client (McEwan and Garland: (2012) 16.3

    International Journal of Evidence and Proof).

    It is partly to change this cultural understanding

    that the Stop Delaying Justice! initiative is

    addressed. Perhaps implicitly acknowledging that

    rule promulgation alone may not achieve the desired

    change in ethos, the programme employs directtraining and also staged magistrates courts

    scenarios accessed via the internet with written

    explanatory commentary. The materials are aimed

    at defence lawyers as well as the judiciary and legal

    advisers.

    This drive to make case management more

    effective coincides with possibly the first use of a

    wasted costs order made against a solicitors firm (R v

    SVS Solicitors [2012] EWCA Crim 319). The

    determination in the judiciary to enforce the Criminal

    Procedure Rules is now unmistakeable.

    Robust approach

    Some of the scenarios offer a very robust approach to

    case management, particularly those reflecting the aim

    that the plea should be entered and the case fully

    managed at the first hearing. Advocates should be

    ready to go through the documentation with their

    client on the day, with the case, if necessary, being put

    back in the list rather than adjourned. Pleas should be

    entered irrespective of the extent of service of

    evidence, disclosure of unused material or the grant of

    legal aid. Any lack of opportunity to secure legal

    representation or to review prosecution evidence is

    insufficient reason to delay entering a plea.The official view appears to be that defendants

    know whether they are guilty or not, regardless of

    access to legal advice. There is no acknowledgment

    that some suspects believe that all sexual intercourse

    is rape, or that taking mailbags for a train ride is

    inevitably theft. Although the guidance concedes that

    there may be exceptional cases where a defendant

    who pleads guilty at a later stage should not lose the

    credit for an early plea, these will be rare and mustbe strictly justified. The examples given, such as a

    defendant with no memory of the event, refer to gaps

    in factual, rather than legal, information. It is very

    clear that any paucity of detail due to the CJSSS

    (Criminal Justice: Simple Speedy Summary) initiative

    does not establish an exceptional case.

    Defence difficulties

    Defence advocates are under pressure to supply

    details of their case and to do it early. It is not a

    precondition that they should have received all the

    prosecution evidence from the CPS. Yet it is difficultto see how they can properly agree that a particular

    witness is not needed without seeing the statement,

    or agree arrest evidence or a tape transcript that is

    not supplied. Duty solicitors with heavy caseloads

    may have little time on the day in question to consider

    any evidence that is available, and may also doubt

    whether they should agree evidence unless certain of

    continued involvement in the case.

    There may be some reservations also about the

    claim that, since completion of the form amounts only

    to early notification of what line is to be taken at trial,

    advance notification of the defence involves no

    conflict with legal professional privilege. Logicsuggests that, where no information is disclosed that

    would not be public at that stage, the contention is

    correct. If, however, the defence team are uncertain at

    the case management phase, a defence statement

    would reflect only a provisional position, the gist of

    discussions so far, and be privileged. We are told that

    all summary trials are compliant with article 6 of the

    European Convention because of the possibility of a

    rehearing in the Crown Court. Given the considerable

    potential financial and other costs of retrial, this

    hardly justifies unfair proceedings in the magistrates

    court. To force defendants to make effectively binding

    decisions before they are ready would be oppressive;neither does retrial serve the interests of efficiency.

    is some of the day-to-day experience of how the law

    and sentencing guidelines are operating at the coal face.

    Q: Do you have time for any activities outside court?

    A: Im focused on family, with four children and our

    first grandson due at the beginning of June. I do follow

    professional football very closely. I support

    Manchester City. I dont get to see many games. I

    watch a lot on the TV, avidly read everything and talk

    about it probably too much.

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    Advocate

    Its All Greek to MeThe interpreter debacle

    A man charged with perverting the course of justice is

    told he is a pervert. A passer-by, found by chance to

    speak Lithuanian, is brought in to court to act as an

    interpreter. And a pet rabbit is registered as a Czech

    interpreter.

    There have been some light-hearted moments since

    courts and police stations began using AppliedLanguage Solutions, a name now carrying its own

    intrinsic comedy, on 1 February this year. But the

    sober reality is that the subsequent shortage of

    properly qualified interpreters has meant that

    defendants are regularly remanded in custody while

    miscarriages of justice are inevitable.

    How did it come to this?

    Until July last year, the Ministry of Justice had been

    spending 60m a year providing interpreters across

    the justice system under the so-called National

    Agreement. These arrangements allowed the court tobook directly a freelance interpreter, qualified by

    the National Register of Public Service Interpreters

    (NRPSI), when required. If there were any problems

    with an interpreter, they would not be booked again.

    The Eye of Sauron then fell upon interpreters and

    the MoJ calculated that savings of 18m could be made

    by using one company for all interpreters. The

    Framework Agreement came into being in July 2011

    after a 12-month procurement process.

    The contract was won by ALS, who already had

    experience of running a similar scheme on a smaller

    scale in Oldham. ALS was established in 2003 by Gavin

    Wheeldon of Dragons Den fame, of whom his mothersaid My nickname for Gavin was our little Arthur

    Daley, my dad always said if he didnt end up behind

    bars, hed end up making a fortune. In December, the

    company was bought by Capita, indicating that

    someone could see profit in the enterprise.

    These developments probably passed beneath the

    radar of most criminal solicitors, perhaps already

    feeling the strain of responding to a torrent of

    consultations whilst simultaneously holding down

    paid employment.

    Incompetence

    Came 1 February 2012, however, and any solicitor

    dealing with a non-English speaking client was swiftly

    brought up to speed with the interpreters crisis.

    The new scheme has created problems of two kinds.

    First, ALS cannot cope with the demand for

    interpreters. The company offers poor wages, and (to

    their credit) interpreters have remained remarkably

    united in refusing to work for the company. One

    consequence is that ALS interpreters frequently

    attend court very late if they show up at all. Whilethis is frustrating for solicitors, the real impact is on

    defendants. For a client who has spent hours in a cell

    waiting to appear in court and who has no idea what

    is being said about them let alone what their fate

    will be the situation must be terrifying.

    Second, when ALS interpreters do attend court, they

    are often unable to do their jobs properly. Although

    the company employs some capable interpreters, a

    large number of those registered with the agency

    simply do not have the proficiency to undertake this

    highly skilled work.

    It used to be the case that, unless there happened to

    be someone in court who could speak the language inquestion, there was no way to assess an interpreters

    Excluding evidence

    The materials are similarly robust on the consequences

    should the defence fail to identify issues as required.

    Courts are said to be entitled, in addition to making

    wasted costs orders, to refuse to allow a specific defenceto be raised at trial unless notice of it was supplied in

    advance: in the Leona Rogers scenario, this is

    explained to an unrepresented defendant, who duly

    indicates her proposed defence. Writtle v DPP[2009]

    EWHC 236 is cited in the commentary as an authority for

    this, although there the prosecution had closed its case

    months before the defence produced a new expert

    report; also cited is Rochford[2010] EWCA Crim 1928,

    where no such course of action was advocated.

    Justice is not served by excluding evidence genuinely

    relevant to the issue of guilt, and to see an unrepresented

    defendant being threatened with the prospect of it

    constitutes an unedifying spectacle. An evident hardening

    of attitudes to CPS mistakes such as failure to warn

    essential witnesses to attend is little consolation.

    Although it might encourage greater efficiency to

    refuse an adjournment even if the case will therefore

    collapse, it also jeopardises the public interest in

    reaching accurate verdicts and properly punishing the

    guilty values to which the overriding objective commits

    all participants in criminal proceedings. The new climate

    holds verdict accuracy so dear that the defence must alert

    the Crown to its own mistakes. Therefore it should not be

    undermined in order to punish either side or to cut costs.

    Jenny McEwan

    Professor of Criminal Law, Exeter University

    Editor, International Journal of Evidence and Proof

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    Advocate

    The rule against sole or decisive hearsay evidence

    revisited

    InAl-Khawaja and Tahery v the UK, the ECtHR

    reversed its previous decision, ruling that where a

    hearsay statement is the sole or decisive evidence

    against a defendant, its admission will notautomatically result in a breach of a defendants article

    6 rights to a fair trial.

    The crucial question in every case is whether there

    are sufficient counterbalancing factors to permit a fair

    and proper assessment of the reliability of the

    evidence.

    The ECtHR accepted that it might be difficult for a

    judge to determine whether hearsay evidence would

    be decisive in advance of the trial. Sole meant the

    only evidence in the case and decisive meant

    evidence of such significance or importance as is

    likely to be determinative of the outcome of the case.

    The ECtHR stated that there were strong procedural

    safeguards in English law to ensure fairness, for

    example, the CJA 2003 requires the reason for the

    absence of witnesses be justified and fall within one

    of the defined categories; and section 78 PACE 1984

    provides a general discretion to exclude evidence.

    In Al-Khawajas case, the admission of hearsay did

    not violate his rights to a fair trial because: the reason for the absence of the witness made it

    necessary to admit the statement;

    it was in the interests of justice;

    the evidence was reliable as the deceased had

    made her complaint to two friends promptly after

    the alleged incident which corroborated her

    account;

    the deceaseds description of the incident bore

    strong similarities to a separate incident alleged

    by another complainant;

    there was no evidence of collusion between the

    witnesses;

    a strong judicial direction enabled the jury to

    competence. Under the current system, it can be quite

    clear that an interpreter has fallen short: the look of

    perplexity on a defendants face when words are

    mistranslated is often ample evidence. It is also

    alarming to be midway through a bail application only

    to find that the interpreter has been standing mute

    next to the defendant throughout, offering moral

    support perhaps but little else besides.

    Such travails mean significantly increased waiting

    time as the already overloaded court staff struggle to

    manage. We await the entirely foreseeable appeals

    and miscarriages of justice, just like those that led

    Lord Justice Auld to recommend, in 2001, that urgent

    steps be taken to increase the numbers and

    strengthen the quality of interpreters serving the

    criminal courts and to improve their working

    conditions. His recommendations resulted in the

    implementation of the National Agreement referred toabove, now, regrettably, functus officio.

    Language lessons

    In considering this debacle, one can be forgiven for

    feeling a sense of dj vu. Cost-cutting is a necessary evil

    but the introduction of a nationwide scheme of this sort

    with minimal consultation, alongside an inadequate

    pilot study characterises a familiar approach to

    funding the criminal justice system. Whether the

    proposed savings can be made using ALS remains to be

    seen, but when the cost of thousands of needless

    remands in custody, wasted costs applications and

    appeals is reckoned, it is not far-fetched to suppose that

    more money, rather than less, will eventually be spent.

    But there are lessons that can be learned, not least

    from the perseverance, tenacity and solidarity shown

    by the wider pool of interpreters. Indeed, they have

    already scored a significant victory when, less than

    two weeks after implementation, the MoJ announced

    that, With immediate effect, HMCTS will revert to the

    previous arrangements for all bookings due within 24

    hours at the magistrates courts.

    The interpreters have kept up the pressure. While

    this has meant increased waiting times for solicitors

    and defendants, it has also highlighted the importance

    of interpreters to the proper functioning of the courts.

    They have also managed to maintain a relatively high

    profile for the topic in the national media, despite thestory not being of instant appeal to those without a

    special interest.

    Ultimately, it is as our clients advocates that we must

    support the interpreters. We therefore wish them

    every success and sincerely hope that their efforts pay

    off, lest our highly skilled and highly respected cadre of

    interpreters is lost to the criminal justice system.

    Rebecca Niblock

    Dalton Holmes Gray

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    Advocate

    Julian Young wrote about his difficulties in finding an

    informal resolution to his dispute with the CPS over

    their non-payment of wasted costs (London Advocate,

    issue 68, page 11). Perhaps his mistake was to think

    that the CPS would respond to anything less than a

    formal county court judgment, which he can get next

    time by virtue of section 41(2) and (3) of the

    Administration of Justice Act 1970, under which wasted

    costs against the prosecution are enforceable as a civil

    debt. If nothing else, he might at least enjoy watching

    the bailiffs confiscate the DPP's goods and chattels.

    Richard Wood

    9 King's Bench Walk

    Letter to the AdvocateIf any reader member, associate member or anyone else would like to express a view on current events in the

    profession or the courts, please send an email to the editor or assistant editor. Letters may be edited.

    Book ReviewExpert Psychiatric Evidence 2011

    by Keith Rix

    published by the Royal College of Psychiatrists

    This book is by a well-known forensic psychiatrist who

    has recently obtained a Masters in Medical Law andEthics. I wish I had had access to it a few years ago,

    when inadvertently, unwillingly, with legal ignorance

    and naivety, I became an expert witness in a case.

    The book is comprehensive, heavily referenced to

    statute and case law and also psychiatric literature.

    Central chapters are on the laws of England and Wales,

    with notes on other places. A separate chapter reports

    the main features of other jurisdictions.

    It covers different situations in which a psychiatrist

    may be requested to be an expert witness and includes

    frameworks for appearing in civil and criminal cases,

    different stages of those cases, reports for family

    proceedings, cases involving capacity, personal injuryclaims and matters before tribunals, inquests and other

    bodies.There are informative and clear boxes in all the

    chapters and further reading suggested in most.

    It is extremely detailed but readable, at times even

    amusing. Useful tips apart from "Preparation,

    preparation, preparation," and "Speak up, speak

    slowly", include "Keep your feet facing the judge and

    swivel to listen to counsel (the turning technique)" ! In

    court, the witness should keep calm and not be drawn

    into contest or argument - that is for the lawyers!

    Throughout, it emphasises the imperative to be

    objective, unbiased in giving expert evidence, not

    having regard to which side asked for your opinion. If

    your opinion changes, that change needs to be

    explained carefully.

    Useful appendices include examples of letters

    keeping track of the case, including all incoming and

    outgoing communications, and an imagined criminal

    report on Daniel McNaughton, February 1843. The

    report, laid out according to the Academy of Experts

    and Expert Witnesses Institute model, points to

    presentation, content and preferred style.

    Advice is detailed and practical, even extending to

    avoiding staples and paperclips. All aspects are covered,

    including secertarial support, billing, marketing

    yourself and holidays (with a more favourable time

    allowance for judges than for medical men)!

    Heisenberg, the mathematical physicist, tells us, An

    expert is someone who knows some of the worst

    mistakes that can be made in his subject and who

    manages to avoid them. This book will certainly helppsychiatrists, perhaps also lawyers, avoid major

    mistakes.

    My own foray into the world of the expert witness

    could have been worse. Making allowances for my lack

    of legal sophistication, the jury sent a message to

    thank me and both sides of the case were

    understanding and courteous. In the unlikely event of

    another such occasion, I would certainly go prepared,

    armed with this book.

    Jane Garner

    FRC Psych

    conduct a fair and proper assessment of the

    reliability of the allegations.

    In Taherys case the court found that his right to a fair

    trial had been violated. Although the reason for the

    absence of the witness was justified, there were no

    counterbalancing factors which could compensate for

    the difficulties that would be caused to the defence by

    the admission of the statement and no judicial direction

    could provide a sufficient counterbalance where an

    untested statement of the only prosecution eyewitness

    was the only direct evidence against the defendant.

    The rule cannot be applied rigidly in every case and

    the admission of a witness statement in lieu of live

    evidence will be a last resort.

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    Lay magistrates have pleasantly changed: when I

    qualified, my clients were sentenced by the Chamberof Commerce sitting with a few Masters of the Hunt

    for diversity purposes. If you asked the government

    why there were no black people, Asians or women on

    the bench, they'd reply that, as those folk weren't Club

    members, they hadn't got the depth of experience

    necessary for the post. The Chancellor's chihuahua

    had more chance of appointment than any gay or

    lesbian.

    The occasional women who did sit were even more

    frightening, making the entire court feel like they

    were still in short trousers. When I snuffled my way

    through a plea, suffering from a stinking cold, one of

    them first jailed my client and then said, "And as foryou, Mr Reid, go home and go to bed!" Howls of court

    laughter, swiftly silenced by a basilisk stare.

    Police evidence was holy writ, acquittals in an

    assault PC trial were only secured if the officer, when

    asked to dock ID his assailant, pointed triumphantly to

    the list caller.

    It was just as bad if you worked in the court system.

    I remember the first Nigerian

    appointed as a court clerk having her

    name deliberately mispronounced by

    every police jailer in the building. She is

    now a district judge.

    Now it has changed to the point thatit is my hillbilly client who complains:

    "Bruce, what chance do I stand on a

    domestic, with three women on the

    bench?"

    My local benches are perceptive,

    humane and reflect their community, so

    I was disturbed to read the reply of the

    Chair of the Magistrates' Association in

    the last Advocate when he was asked if

    the prosecution is obliged to prove its

    case.

    Traditionally the answer was, simply,"Yes".

    He doesn't seem to agree. Instead, he

    replied that, if a defendant knows he is

    guilty, then he should plead guilty, and

    that, if the defendant thought otherwise,

    then it was up to the CPS to prove it.

    Pardon? When did that tradition change? The

    burden of proof is not an optional extra. Isn't it the jobof the Crown to prove its case full stop? If they

    cannot, it is not an offence. Bankers won't admit fault,

    why should a burglar? Where did he get the idea that,

    just because a man is guilty, he's got to admit it?

    Probably sitting on the same committee who devised

    the "Stop Delaying Justice!" initiative, the committee

    whose invitation to defence solicitors seems to have

    got lost in the secure e-mail but the CPS, Justices'

    Clerk's Society and HMCTS somehow managed

    without us. Did no-one notice the empty chair?

    Never thought I would line up with those Colonel

    Blimps of yesteryear; but they would never have come

    out with that one.On a positive note, you should all read R v Newell

    2012 EWCA Crim 650, where the Court of Appeal has

    something sensible to say about using the information

    given on pleas and case management hearing forms. I

    am now completing PCMH forms, albeit cryptically.

    Bruce Reid

    12 MAY 2012

    Advocate

    Knowledge of Guilt

    Anyone wishing to contribute to the Advocate should please contact the editor. More

    news and views from the LCCSA are on the website: www.lccsa.org.uk