LondonLondonAdvocateAdvocateThe newsletter of the London Criminal Courts Solicitors’ Association

SEPTEMBER 2012 NUMBER 71

Editorial

LCCSA Notices and News

President’s Report

Interview: Association of PrisonLawyers

Work of the Sentencing Council

Law Centres

Law Report

Book Reviews

Court Performance

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The Olympics turned out to be a (for some,surprising) triumph. The smooth organisation, themagnificent volunteers, the sporting successes: theymade us proud to be British – and proud to beLondoners.Those watching from abroad have been reminded ofthis country’s virtues. Among these, along with a free,high-quality health service, tremendous children’sliterature and self-deprecating humour, many wouldinstinctively list a fair and uncorrupted legal system,the nonpareil of the civilised world.But our treasured criminal justice system is goingthrough perilous times. There are those who are stillworking to improve it, as this issue’s report on thework of the Sentencing Council shows. But thedestructive combination of financial cutbacks and aseries of moves to “speed up justice” are nowbeginning to have an effect. Both our president, Jim Meyer, and his guest, JimSturman QC, spoke of this at our annual dinner. As Jim

Meyer put it, we are in danger of justice being seen tobe done – but not actually being done.Both speakers recognised that, in these difficulttimes, the two branches of the profession are often atodds with each other. But they also took theopportunity to point out how short-sighted thisapproach is. To quote Jim Sturman, “Each time the Barscores a point off solicitors, or solicitors off the Bar, wecut our own throats as well as each other’s.”As we are reminded by this issue’s article on the historyof law centres, both branches of the profession have,among their ranks, lawyers who spent years of theircareers battling for justice for the very poorest in society.Long may that tradition continue – even when thetimes are not auspicious. I hope your holidays (and theOlympics) have refreshed you – and given youstrength to resume our struggles.– Nicola Hill

Kingsley Napley

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Editorial

PRESIDENTJim MeyerTuckers Solicitors39 Warren StreetLondon W1P 5PDDX 123596 Regents Park 3T 020 7388 8333E meyerj@tuckerssolicitors.comPAST PRESIDENTMalcolm DuxburyVictor Lissack Roscoe &Coleman70 Marylebone LaneLondon W1U 2PQDX 9020 West EndT 020 7487 2505E malcolmduxbury@victorlissack.co.uk

VICE-PRESIDENT Akhtar AhmadABV SolicitorsUnion House23 Clayton RoadHayes UB3 1ANDX 44650 Hayes (Middx)T 08445 879996E akhtar.ahmad@abvsolicitors.co.ukJUNIOR VICE-PRESIDENTAND EDITOR OF THEADVOCATENicola HillKingsley NapleyKnights Quarter14 St John’s LaneLondon EC1M 4AJDX 22 London/ChanceryLaneT 020 7814 1200E nhill@kingsleynapley.co.ukTRAINING OFFICERJonathan BlackBSB Solicitors5-7 Euston RoadLondon NW1 2SADX 37905 King’s CrossT 020 7847 3456E jonathanb@bsblaw.co.uk

SECRETARYMelanie StooksTV Edwards LLPPark House29 Mile End RoadLondon E1 4TPDX 300700 Tower HamletsT 020 7790 7000E melanie.stooks@tvedwards.comTREASURERAnil RajaniIBB SolicitorsCapital Court30 Windsor StreetUxbridge UB8 1ABDX 45105 UxbridgeT 08456 381381E anil.rajani@ibblaw.co.ukSUB/COMMISSIONINGEDITORGwyn MorganMax Findlay AssociatesT 020 8870 0466E gwynmorgan@maxfindlay.com

ADMINISTRATORSandra DawsonPO Box 6314London N1 ODLDX 122249 Upper IslingtonT 020 7837 0069E sandra@admin4u.org.ukLCCSA WEBSITEwww.lccsa.org.uk

AUTUMN CONFERENCEThe LCCSA European conference will take place inMalaga from 12-14 October 2012. The principal speakers will be Anthony Edwardsand Jeffrey Smele.AGMThe LCCSA’s annual general meeting will be on 12November 2012 at 6.45pm. The meeting will befollowed, at 7.30pm, by a dinner. The venue is St Stephen’s Club, 34 Queen Anne’sGate, SW1H 9AB.ACCREDITATIONThe LCCSA and the School of Law at SwanseaUniversity are collaborating to provide associationmembers with accreditation as court duty solicitorsand police station representatives. Fees will be reduced by 20% for LCCSA members.There are monthly assessments in London atCharter Chambers. These will cover critical incidentstests, interviewing and advocacy assessments and thewritten examinations. The dates for assessment in London for the nextthree months are:• 24 and 25 September • 29 and 30 October• 20 and 21 NovemberCOMMITTEE MEETINGSThese meetings are held monthly (except for August),on Monday evenings. The next meeting will be on 8October.The venue is the offices of Kingsley Napley andmeetings start at 6.30pm. All members are welcometo attend.TRAININGHis Honour Judge Peter Rook will deliver a lecture onsexual offences at 6pm on Thursday 25 October. Thevenue will be Hodge Jones & Allen, 180 North GowerStreet, London NW1 2NB.Further information on this and on all LCCSAtraining events can be found on the LCCSA website:www.lccsa.org.uk

ANNUAL DINNERThe association’s annual dinner took place on 6 Julyat the Sheraton Park Lane hotel, Piccadilly.In his speech, LCCSA president Jim Meyer told thosejudges present that solicitors are now feeling “morelike indentured servants than respected colleaguesand officers of the court” and expressed his fear that“speedy” justice may mean poor justice. To thosebarristers at the dinner, Jim said that, at this time offinancial constraint, “what is unhelpful to the debateis the narrow self-interest of one group ofstakeholders being promoted above the widerinterests of clients and all those involved in deliveringquality and justice”.Guest speaker, Jim Sturman QC, spoke on both ofthese themes, agreeing that “the divisions betweenthe Bar and solicitors are music to the ears of centralgovernment, playing each side of the profession offagainst the other in a policy designed to drive downcosts and expense”. The QC expressed outrage at his experience of“swift” proceedings in the magistrates’ courts: weare, he said, “sleepwalking into an age when theyoung will have their lives blighted forever by amoment’s stupidity, with no hope of redemption in anincreasingly punitive and prejudiced society”.CPS LONDON RESTRUCTURECPS London will be restructuring its operations frommid-September.It is moving away from its current London boroughstructure. In future, the work will be divided intomagistrates’ court and Crown Court work and will bebased around court criminal justice areas. There willalso be specialist youth court, traffic and daytimecharging teams. In September, frontline staff will begin moving tojust three locations. The complex casework unit willgo to Drummond Gate, Pimlico. From early October,all Crown Court work will also move to DrummondGate, while magistrates’ court work, traffic andcharging goes to the Cooperage, Southwark.Southern House, Croydon will accommodatemagistrates’ court and youth court work.For more information, see the CPS London websitewww.cps.gov.uk/London

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LCCSA Notices and NewsMore news on the website: www.lccsa.org.uk Follow us on Twitter LinkedInFacebook

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President’s ReportThe speech I gave at the annual dinner used somepretty powerful language because I wanted to makesure that the association’s guests (members of theBar, district judges and high court judges) really knewwhat was happening on the ground.For this report, I have wrestled with my conscience,struggling to decide whether I should stick to myformula of reporting CJS-wide issues and ignoringmatters that are personal to me and/or my firm(Tuckers) or whether I should write about what is atthe forefront of my mind. The latter won through so Ihope you will forgive me if this report is a littleTuckers-centric.RedundanciesTuckers has just been through a redundancy process.We have lost friends and colleagues, some of whom Ihave worked with for over 13 years. It has not beeneasy and the sense of guilt about not being able tomake the business work for the individuals who havegone is painful. I know this is nothing compared tothe uncertainty the individuals themselves must befeeling. I also know that we are not the only firm thathas gone through this process: we were not the firstand we shall not be the last. It’s one of the reasonswhy I consistently describe the supplier base as“fragile” and why I know my prediction, at thebeginning of this year, that there would be a “slowdeath” of many law firms, as a result of a “suffocatingsqueeze”, was right on the money. My firm has done what it needs to do to survive and,we hope, position itself so that it is ready to take onthe challenges that lie ahead. We believe that we canoffer some of our back-office services to other firmsto help them reduce their costs burden and also toprovide an additional revenue stream to offset againstours. This is one of the ways that we are re-shapingthe business to be ready for tomorrow’s future.Widespread struggleBarristers are struggling with the adverse conditionstoo. The prosecuting authorities, the police and otherlaw enforcement agencies, HM Courts and TribunalsService, the Ministry of Justice, everyone is finding ithard to work within the austere economic climatethat prevails.So what has gone wrong and can it be fixed? Thetruth is that there is no one feature that anyone canpoint to:• The volume of cases has reduced dramatically.Solicitors have acted in fewer matters andtherefore barristers have been instructed infewer matters.

• Fees have reduced dramatically. • The cost base has increased. It’s a perfect storm:• Firms have scrambled to increase market shareby increasing their stable of duty solicitors. Butbecause of this, the number of duty slots availableper solicitor has reduced significantly.• Firms have tried to increase revenue from CrownCourt advocacy so members of the independentBar have seen their workload reduce further.• Barristers have looked for additional revenuestreams outside traditional advocacy services,training up to become duty solicitors andwidening the scheme of direct access. As a result,solicitors’ volume of work has reduced.And round and round we go, in a spiral of everdiminishing returns. The “product quality” that is being delivered to theconsumers of the legal profession’s services (ourclients) is without doubt being affected. It is foolishnot to recognise this. If we continue to pretend thateverything is as good as it has always been, how canwe convince government that enough is enough, oreven that it needs to re-invest?Next year will see the beginning of consultations onthe future of publicly funded criminal defenceservices. Things will need to change – dramatically –or we shall consign the concept of justice in ourcriminal system to the rubbish bin. The professionneeds to start talking about this so that therepresentative organisations can prepare themselvesfor the difficult days ahead.Flexible courtsIt feels like madness that, in one paragraph, I amwriting about how dire the economic viability offirms is, whilst, in the next, I report on the piloting of“flexible courts”. It is intended that courts will sit outof normal office hours as a matter of routine. This iswithout there being any change in the current feestructure so that firms will either have to bear thecost of overtime (or days off in lieu) themselves, orrisk breaching employees’ terms of contract bychanging their working patterns.The idea was first “published” to the representativeorganisations at the June meeting of the criminalcontract consultative group (CCCG) when arepresentative of HMCTS spoke about the plans topilot the scheme in south Wales for six months fromSeptember. This association, together with others,asked that there should be a central point of focus toaddress concerns and that a formal consultation

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process should be made available to practitioners. Wemade it clear that the cost to the defence needs to beassessed and understood, and that the result of the adhoc surveys carried out by HMCTS in local areasshould be made available to CCCG as soon as possible.The Legal Services Commission was kind enough toconfirm that, if solicitors declined to work, theywouldn’t be in breach of their contract (but only afterwe pointed out that the latter was specific aboutbusiness hours). The other stakeholders alsorecognised that, although defence practitioners couldnot be forced to attend flexible courts, HMCTS and theCPS could hardly go ahead without them. I am sure

that this topic will be at the top of the agenda for thenext few months.CJS efficiency programmeOne final update from me: a formal request forfinancial assistance to be made available to the defence– so that firms can comply with the ambition for thecourts to go “paperless” – has been made to thegovernment; and I hope to report the outcome in thenext issue of the Advocate (my final issue beforeAkhtar takes over the reins as president).

– Jim MeyerTuckers Solicitors

Interview with Simon CreightonSimon Creighton represents the Association of PrisonLawyers

Q: How did the Association of Prison Lawyerscome about, what does it do and how manymembers does it have? What is your role?A: The association came into being four years ago. Itwas an initiative by a number of lawyers who workedmainly in the field of prison law. The aim was to have abody which would share information and providerepresentation in an area of law which was notmainstream. This was at a time when prisoners wereseeking more legal advice, for example, on parole.Membership of the association is broadly open topeople or firms who deliver legal services to prisonersand this usually entails working under an LSCcontract. For its members, the organisation runsextremely regular training, with sessions every four tosix weeks, with updates on various aspects – prisonlaw generally, community care, mental health, femalesin prison – and also larger conferences, with speakerssuch as members of the parole board or people fromthe Ministry of Justice.We have about 300 members, drawn from over 100solicitors’ firms and barristers’ chambers andmembership is spread across the country. Half thetraining is in Manchester. I was one of the first members of the executivecommittee and served for two years. I am a regulartrainer and I deal with press enquiries.Q: Does the association have a president?A: Edward Fitzgerald QC is the current president. TheBar is actively involved in the association, with manybarrister members. Training is usually hosted bybarristers’ chambers.

Q: What is the history of legal aid for prison workand what is the position now?A: Historically, legal aid was available for most prisonissues, paid at an hourly rate, with no fixed fees. Thismade it attractive to criminal practitioners when fixedfees came into crime and that was when there was alarge influx of lawyers into prison law. Then theMinistry of Justice conducted a review into the legalaid provisions. They made it clear that there would befixed fees and the Association of Prison Lawyers wasextremely active in lobbying the MoJ and the LegalServices Commission, trying to get the fixed fees toreflect the work done in the average case and to makesure that there was an escape clause for thecomplicated cases.

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One of the concerns also raised by APL was thatthere was no form of regulation to prevent anyonewith a general criminal contract from undertakingprison law work, and that people needed to beappropriately qualified to advise prisoners. As aresult of our discussions, there is now a specific partof the criminal contract on prison law, with arequirement that the firm must employ someonewith the appropriate supervisor standard. Q: Is some representation in prison carried outby unqualified staff?A: There are no rights of audience as such fortribunals in prisons, though certain aspects of theparole process can be difficult if the prisoner is notrepresented by someone who is a solicitor orsupervised by a solicitor. I would like to think thatthe majority representing prisoners at hearings arein training to be lawyers or are lawyers, whether theybe solicitors or legal executives. It would bedisappointing if this was not the case. The practicalreality for some firms under the current legal aidregime is that work is often done by trainees andparalegals but we would very much hope that thosepeople are properly supervised and are on the pathto becoming lawyers.Q: What has been the impact on your work of theIPP sentence?A: When these were introduced, a large number ofpeople were sentenced to indeterminate sentences forpublic protection, which are, in effect, identical to lifesentences. The number serving these sentences – lifeand IPP – trebled in a short period of time. All ofthese prisoners are entitled to be represented at theend of their sentence over parole issues and oftenrequire representation leading up to that. Certainly,there are now more prisoners requiring lawyers thanthere are lawyers available and the parole board hasexperienced some difficulties when prisoners havebeen unrepresented. There is a “gateway” of written representations,when you make the case in writing for getting aparole hearing and, if the prisoner is unrepresentedat this point, the prospect of getting through thatgateway is lower. Q: Is there a fall in standards in the work done bythe probation service?A: With the increase in the prison populationgenerally and the number of indeterminatesentences, the probation service is stretched. At thesame time, there has been a shift of emphasis so thatthey are no longer probation officers but “offendermanagers”, with an enormous change in approach.While you still get some very good probation officerswho will go the extra mile for clients, there are those

who will do no more than simply tick boxes and onlymeet prisoners via telephone calls and video links. The next step is that there will be contracts for thedelivery of these services, opening the way for newservice providers, outside of the traditional probationtrusts. This makes the future even more uncertain.Q: Is there any particular current problem forprisoners you would point to? A: The general overcrowding and the enormouspressure on demand for courses is a problem,particularly for IPP prisoners and lifers. There is sucha reliance on prisoners doing courses as the only wayof measuring progress, and people who can’t get oncourses or who continue to protest their innocenceface massive disadvantages in trying to progresstowards release.One thing that has helped somewhat is that the lastchairman of the parole board, Sir David Latham – hehas just been replaced by David Calvert-Smith – was apowerful figure in persuading the board to be morerobust in risk assessment. Release rates haveimproved but it is very, very difficult for people whoneed to do courses to get through those courses insufficient time.Q: Would you like to comment on Ken Clarke’splans for prison work?A: There is doubtless a wide range of views amongour members on this and so I’m not sure I cancomment on everyone’s behalf. But I think ourmembers would be in favour of prisoners havingmore opportunity to do useful and purposeful activityand to be paid better for what they do. But, on the practical side, we find that “security”always wins out. Only one tiny incident means that awhole prison is locked down and it is difficult toimagine how a normal working day can beaccommodated when this is happening regularly, forexample, in a high security prison.Q: LCCSA members have been experiencingdifficulties with London prisons with regard toissues such as booking visits and takingequipment into prisons. Any comments?A: These are major concerns for our members andthe Association of Prison Lawyers has recently had ameeting with the MoJ about all these areas, includingthe lack of consistency about what we can take intoprisons. There are big problems with prisons mixingsocial and legal visits and with their not providing aconfidential area for conferences even where theyare not mixed. Every person who has done a legalvisit could give an example of an enormously longwait. I went to a prison in Wales earlier this year,spent three hours getting there and was made to waitfor an hour and 15 minutes before only being

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allowed 15 minutes to see my client. The MoJ is keen for us to provide examples of wherethings are going wrong. People with examples shouldcontact administrator@associationofprisonlawyers.co.uk An application has recently been granted for ajudicial review to challenge the way a particularprisoner’s legal visits have been handled. He has beenconvicted but has been charged with further offencesallegedly committed while in prison and his solicitorhas argued that interference with facilities has meantthat his trial cannot be prepared properly, a potentialbreach of article 6.Q: Is there a solution to these problems, such as acentral booking system? A: No-one is sure how a centralised booking system issupposed to work. We would like to see a uniformity inthe way visits are booked in all prisons, perhaps thenmoving to a centralised system.Q: Which is the most annoying prison in London?A: I think any “wooden spoon” prize would rotateamong them. Sometimes things are bad at one prisonand sometimes at others. At Belmarsh, for example,you don’t know what to expect from one week to thenext. Literally, there are times when a paper-clip is notallowed in. Pentonville is very difficult for booking-inarrangements, as is Wandsworth.Q: Is there a difference in standard betweenprivate and public prisons?A: Private prisons offer greater efficiency and courtesy.Many of them benefit from having modern purpose-built buildings which makes their job a lot easier. Ithink that the public prisons could learn from the

private about how to deal with people. The staff havemore of a customer service approach to people onvisits, rather than being resentful and suspicious. Butall this relates to visiting arrangements: there aremixed views about the ability of private prisons toprovide regimes and purposeful activity forprisoners.Q: How do you feel about working in a sectorwhich is so often vilified in the press?A: I think the press is very depressing for our clients.For lawyers, the press attitude should not matter: it’sour job. It’s incredibly short- sighted not to realisethat, if a society can’t protect its most vulnerable, thenit can’t protect the rights of others. The popular press are to blame for spreading theidea that prisons are some kind of holiday campwhen the reality is that this couldn’t be further fromthe truth, that prisons generally are very unpleasantplaces to be. When people go through their firstexperience of being in prison, they can be absolutelydespairing about the difficulties they’re experiencingwhich they never ever imagined. Q: What is your personal career history and whatis your current practice?A: I trained in a high street legal aid practice in EastLondon and, soon after I qualified, I was appointed assolicitor to the Prisoners’ Advice Service. I was thefirst person to have that job and probably the firstsolicitor to work exclusively in prison law. When I’dworked there for five years, I became one of thefounding partners of Bhatt Murphy, which we set upin 1998. The prison law team now has four solicitorsand one trainee working with us.

Work of the Sentencing CouncilThe Sentencing Council has had an extremely busyand productive first two years. We have publishedguidelines on high volume crimes like assault anddrug offences, launched the first ever nationalresearch on how Crown Court judges sentence andmade it a real priority to engage with legalprofessionals and the public. As we enter our thirdyear, our work rate shows no sign of slowing down aswe turn our attention to developing guidelines forsexual offences, fraud and robbery, and expandingour research to the magistrates’ courts.The Council has three principal aims. The first –and one that readers of the Advocate will be mostfamiliar with – is to promote a clear, fair andconsistent approach to sentencing by developing newsentencing guidelines. The second is to produce

analysis and research on sentencing, includingassessing the impact of guidelines on sentencingpractice. The third is to work to improve publicconfidence in sentencing by promoting awareness andunderstanding of sentencing and considering theimpact of sentencing decisions on victims.Research and analysisWhile the production of sentencing guidelines isprobably what the Council is best known for, it has avery real role to play in undertaking analysis andresearch in relation to sentencing practice. Research with sentencers therefore informs thedevelopment of each guideline. For example, interviewswe conducted with circuit judges around the countryhelped to shape the definitive drugs guideline for drug

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“mules” and street dealers in particular. We are alsorunning large-scale ongoing research projects such asthe Crown Court sentencing survey, launched inOctober 2010. This is a nationwide survey designed togather information on sentences by asking judges toindicate which factors they have taken into accountwhen deciding on the appropriate sentence to pass.This will help the Council to identify the reasons forsentences falling outside guideline ranges, and in thedevelopment of future guidelines identifying whichfactors are important at step 1 and step 2. Public confidenceCriminal practitioners will be only too familiar withmedia coverage of various surveys which report thatmembers of the public believe that sentencing islenient. This is frequently as a result of low levels ofknowledge of the criminal justice system and the wayin which much of it is reported by the media. What is clear is that, when given the details of criminalcases and informed of the process that sentencers andpractitioners follow when sentencing, the public’ssentencing decisions are much closer to the sentencesactually passed and, in some cases, are more lenient. The Council is being proactive in working with themedia and engaging with the public as it is vital thatthe public understand what judges do in their nameand why. We are currently working with VictimSupport, for example, to produce a short animated filmto explain the basics of sentencing to victims andwitnesses to try and dispel some of the myths aboutthe sentencing process. GuidelinesThe aspect of the Council’s work that practitionersare most familiar with is the production of sentencingguidelines. Guidelines aim to ensure a clear, fair andconsistent approach to sentencing while improvingpublic understanding of the process involved insentencing offenders and the likely outcomes.The Council has already developed and issued fivesets of definitive guidelines – for assault, burglary, drugoffences, totality and offences taken into considerationand, most recently, dangerous dog offences. The guideline format follows a step-by-stepapproach which makes it easier for judges,magistrates and practitioners to apply and for thepublic, including victims and witnesses, to follow. In all the guidelines, the Council has returned to firstprinciples of sentencing and focuses attention on thetwo key determinants of seriousness as defined insection 143 of the Criminal Justice Act 2003: harm andculpability. Weighting these two determinants equallyin order to reach a specific category of offence withinthe guidelines represents a different approach fromprevious guidelines which focused more on scenarios

which judges found restrictive. The Council’s approachallows for a clear structure which can be broadlyreplicated for all offences. Some guidelines will requireslightly different structures but the principles of harmand culpability will remain the same, which isimportant in encouraging a consistent approach.The Council’s newest guideline, on sentencingdangerous dog offences, came into force in courts on20 August 2012. It was produced following requestsfor guidance from magistrates and the police, andaims to ensure that sentencers use their full range ofpowers when dealing with offenders, and thateffective guidance on ancillary orders is provided. Itencourages courts to use more severe sentenceswhere appropriate and proposes an increase insentencing levels from current practice. This is likelyto lead to more offenders being jailed, more use ofcommunity sentences and fewer discharges. Forthcoming workThe Council is currently developing a new guideline forsexual offences and will be launching a consultation onthis towards the end of 2012. The current guidelineswere written shortly after the Sexual Offences Act 2003came into force, as it was considered important thatsentencers had guidance on what was a radicaloverhaul of the law on sexual offending. However, insome instances, a clear picture of offending under theAct had not yet developed. The nature of offending isnow clearer and there have also been massive advancesin technology since 2003 which raises a need to lookagain at how this has shaped sexual offending and howit should be reflected in the sentencing guidelines. TheCouncil will be consulting widely to ensure viable andeffective solutions. The Council is also developing new guidelines for arange of environmental offences, with a particularfocus on how courts should deal with corporateoffenders, revising the theft and fraud guidelines, andreviewing the guidance available in the youth court. As practitioners, advocates are final “users” of theguidelines, so the Council very much valuesprofessionals’ input to its consultations and looksforward to views on these forthcoming guidelines. TheLCCSA has provided detailed and useful responses to allour consultations to date, and the Council very muchvalues the collective nature of its responses. However,the Council would also like to encourage individualpractitioners to respond. It is not necessary to respondto the whole consultation, and the online questionnairesaccompanying consultations on our website –www.sentencingcouncil.gsi.gov.uk – allow respondentsto select areas of particular interest to them.

– Michelle CrottyHead of the Office of the Sentencing Council

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Law CentresCuts to legal aid may mean that we are coming fullcircle to the time before the law centre movementIt’s no exaggeration to say that a legal revolutionbegan when the doors of the first law centre in Britainopened in an unprepossessing part of west London.Legal aid had been available since 1949; but, by 1970,there were few legal practices in rundown areas andfew lawyers who acted in housing, welfare rights,employment, discrimination or matrimonial disputesfor poor and disadvantaged clients. The northKensington law centre in Golborne Road was foundedby a group of radical young lawyers who believedthat access to justice should be provided in the heartof communities and set out to change the waylawyers did business. Dozens of law centres weresoon set up across the country.Change in solicitors’ attitudesAt the same time, there was an important shift in theway criminal defence lawyers worked. In the 1970s,the prospects for the average suspect arrested andheld at a police station were pretty bleak. There wasthen no legal aid available for solicitors to attendsuspects in police custody and there was little chanceof getting a solicitor out to see you at night unless youwere paying for the privilege. Peter Kandler, co-founder of north Kensington lawcentre, was one of the first to go to police stations torepresent clients around the clock. “Solicitors werenot paid to go to the police station at all in those days,so only the very rich or very villainous ever hadlawyers in the police station,” says Kandler today.“Beatings and frame-ups were the norm and therewas lots of corruption. At places like Notting Dalepolice station, local people could literally hear thescreams of suspects being beaten up inside. Policeofficers weren’t too happy to see me when I startedturning up to represent my clients.”Greg Powell is a veteran of Brent law centre. “Therewas tremendous difficulty getting in to see ourclients,” he says. “We were still working under the oldJudge’s Rules. We often had to ask the police to handa letter to our client offering our services.” The long battle to secure the right to legal advice inpolice stations had begun. “I believe that what wedid helped change the way society thought about thesort of protection people should have in a policestation. And we helped lots of innocent people,” saysPeter Kandler.

Eventually, there was a Royal Commission oncriminal procedure and the Police and CriminalEvidence Act followed in 1984. The duty solicitorscheme came soon after.Michael Turner QC, soon to be chair of the CriminalBar Association, another figure to have emergedfrom the north Kensington law centre, thinks lawcentres changed the system. “The new generation oflawyers got established solicitors thinking about howto represent their clients properly and pushedsolicitors who had been strictly open nine to five toprovide a 24-hour service. Before that, if you werearrested in the middle of the night, you were simplynot represented. The law centre gave solicitors aconscience about what they could do for thecommunity.”Michael Turner is just one of many prominentlawyers to have roots in the law centre movement.Tony Gifford, another co-founder of the northKensington law centre, and now head of chambers at1 Mitre Court, represented defendants in the GuildfordFour and Birmingham Six appeals. James Saunders,another early member of north Kensington lawcentre, established Saunders & Co. Michael MansfieldQC, head of Tooks chambers, helped set upTottenham law centre. John Hendy QC, adistinguished defender of trade union causes, foundedthe Newham rights centre in east London. GregPowell is still the managing partner of PowellSpencer after more than 30 years. Massive declineToday there are more than 50 law centres across thecountry; but many are struggling financially. TheLegal Aid, Sentencing and Punishment of OffendersAct (LASPO) promises to cut civil legal aid drasticallyfor much of social welfare law, potentially devastatingfor law centres, for whom a significant proportion offunding comes from legal aid. Many take the view that LASPO is an assault on thelong established idea that publicly funded legalservices and the right to representation and equalityof access should sit alongside the NHS, education,social security and housing as an important part of afair society, and that the cuts to legal aid are taking usback in time to where we were before law centresstepped in. “The government is paying only lip service to theprinciple of providing the safety nets people need,”says Michael Mansfield. “Neighbourhood law centres

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Advocate

Dare v CPS [2012] All ER (D) 131 (Jul)Mr Dare was arrested for an offence under s 328(1) ofthe Proceeds of Crime Act 2002 when his fingerprintshad been found on a stolen car. He admitted ininterview that M, a man whom he knew had beeninvolved with stolen cars in the past, offered to sellhim the car for £800. The appellant had taken the carfor a test drive and then asked M if he could havesome time to raise the money to buy it. He had raised£500 but the sale never went ahead as the car wasrecovered before the sale was made. The appellant was charged with an offence undersection 328(1). He was tried summarily and wasconvicted. The magistrates’ found that:• in arranging a second meeting once he had themoney, he had entered into an arrangement withM within the meaning of s 328(1) of the Act;• the appellant had known or suspected that the carwas stolen;• his intention had been to sell the car on at a profit;and • when arranging to purchase the car with thatintention he had known that he was facilitatingthe acquisition of criminal property by or onbehalf of another.

He appealed by way of case stated.The CPS argued that the arrangement between Mand the appellant to meet for a second time, with aview to a sale, was one which had facilitated thefuture acquisition of the criminal property (the car)by or on behalf of another person, that person beinga future purchaser from the appellant, even thoughthat person had not yet been identified.The High Court ruled that this interpretation ofs 328(1) was far too wide. The arrangement was noteven a contract of sale; it was an arrangement tomeet with a view to negotiating a price. Had the pricebeen agreed and the car handed over, that would havefacilitated the future acquisition of the car bysomebody else. The appellant’s acts had been toopreparatory for that to have taken place and so theconviction was quashed.Section 328(1) requires that the arrangement hasto be one which the defendant knows or suspects“facilitates” acquisition by or on behalf of anotherperson, not “will facilitate” or “will probablyfacilitate”. At the point the arrangement is concluded,the defendant’s knowledge or suspicion that itfacilitates the acquisition by or on behalf of another isrelevant. The other person had to be identified or atleast identifiable.

provided a place which was welcoming andunderstanding, tackling issues on behalf of theordinary person who didn’t have access toresources,” he says. “These legal aid cuts are adisaster. The reality is that law centres could becomevictims of a financial crisis of which they are not theauthor.”It’s not just civil legal aid under assault: fees incrime have taken a battering in recent times too.Many worry that the creep towards telephone adviceonly in the police station will have a damaging effectat a critical stage in the process. “The governmenttoday don’t care about what happens to ordinarypeople in that sort of hostile environment,” says PeterKandler. “I think the changes we are seeing now aremonstrous and are taking us back to where we weredecades ago.” Michael Mansfield agrees the idea is dangerous. “Thepolice station is the crucial point at which defendantsfirst engage with the system; and it’s the moment theysimply must have access in person to qualified andable lawyers, especially as the onus is shifting towardsthe defence to prove innocence,” he says.

Next generationSo what effect will this attack on legal aid have? Willthe cuts inspire a new generation of politicallyinspired lawyer? Or will the financial restraints provetoo much of a deterrent, diverting good young lawyersaway from legal aid work? “The talented young political lawyer is still with us,but it’s so much harder to make a living withgraduated fees and one-case-one-fee on the horizon,”says Michael Turner. “The need for radical lawyers is now greater thanever,” says Michael Mansfield. “They need to be out therein the community at the forefront, fighting exploitation.”What began in north Kensington law centrerevolutionised the way law is practised and lawcentres remain an important part of theircommunities. As cuts threaten legal aid and access tolegal services, they may be needed more than ever. Anew generation of radical young lawyers withconsciences will be needed too. – Oliver Lewis

Powell, Spencer & Partners

11SEPTEMBER 2012

Advocate

Book ReviewsMagistracy at the CrossroadsEdited by David FaulknerWaterside PressThe Magistrates’ Association has commissioned thiscollection of short essays to mark the 650thanniversary of the creation of the role of Justice ofthe Peace. It is a highly readable collection andcarries some radical ideas about what themagistracy might have to offer in the seventhcentury of its existence.The contributors are high profile, including, notonly Lady Justice Hallett and senior district judgeHoward Riddle, but also Times legal correspondent,Frances Gibb, and a range of impressive academics,as well as lay justices and legal advisers, familiarwith the work at the coal-face of summary justice.With the closure of many courthouses and theappointment of increasing numbers of districtjudges, lay justices are looking at whether theircurrent role – confined, nowadays, to the court room– needs re-examining. In their long history, JPs haveperformed a number of public services outside court,including the organisation of the Bow Streetrunners, the oversight of prisons and readers of theRiot Act. Many of the most challenging essays in thiscollection suggest new roles, for which themagistracy is still well equipped.More than one of the contributors point to the ironythat it is a government which preaches the “BigSociety” that is presiding over the fragmentation of thecriminal justice system and the under-use of thiscountry’s most esteemed and long-serving band ofvolunteers. Magistrates’ new roles might include, it issuggested, presiding over restorative justice processes,providing some (much needed) control over policepowers to hand out penalty notices and an extendedrole in the family courts.Refreshingly, for readers of the Advocate, whilesetting out these ideas, many of the contributorsvoice extreme concerns about the pressure for evermore haste in the lower courts and what Roger Graefdescribes, in his excellent piece, as a move towards“assembly line justice.”

Most of the essays are only five or so pages long andthey have been edited and presented with elegance andsimplicity.A thought-provoking and intelligent book. – Gwyn Morgan

Abuse of Process2nd edition by Colin WellsJordansThe concept of “abuse of process”, while simple in itsprinciples, is often complex in its application. Many atime, something has been done or said and we ask, “Isthis an abuse of process?” So, how good was the book?The book is laid out like a skeleton argument,starting off with the fundamental principles and thenturning to the law and its practical application. A chronological approach is taken to thearrangement of the chapters: starting with the policestation, the book goes through the various stages ofthe criminal justice system. The police station chapterprovides a wonderful insight in an area where youwouldn’t necessarily think that questions relating toan abuse of process might arise – but they do. Otherchapters, on, for example, disclosure and delay, coveraspects where an abuse may be more likely to occur.The book also deals with the interplay betweenapplications under sections 78 and 82 of the Policeand Criminal Evidence Act 1984 and suggests whenthese applications should be put forward orconsidered. Case law is also referred to.All the chapters provide an informative analysis ofwhat to look out for and of scenarios in which anabuse may arise. Easy use of language means that thecontent does not come across as heavy: the pointsmade are simple and easy to absorb.In the introductory chapter, Colin Wells describesthe aim of the book in the following manner: “Thisbook, in an attempt to provide a practical approach,will consider various stages and situations in whichan abuse of process may arise and be argued in thecriminal justice system.”Does the book succeed? Without a shadow of adoubt.

– Manjit DograBSB Solicitors

Anyone wishing to contribute to the Advocate should please contact the editor. Morenews and views from the LCCSA are on the website: www.lccsa.org.uk

The Ministry of Justice will shortly be publishing sentencingremarks along with court “performance” figures.

Squirrel Nutkin and Felix Mansfield are on the firstfloor of Camberwell Green court, staring at theCamberwell Wall of Nonsense. They are gobsmacked.What was four square metres of implausible HMCTSperformance, spin and pie charts is now transformedinto a giant Xbox.A 21st Century Interactive Court Experience!Follow Your Favourite Bench As They TackleThe Challenge Of Today’s Remand List!Who’s in court? What’s the charge?Press “Start” now !Dubiously, Squirrel does so.The screen shows a SERCO officer injecting a comatose

figure with coffee.Squirrel Nutkin: My client Norbert Pilfer! Didn’t knowhe was in the cells!Felix Mansfield: Neither does he...Squirrel Nutkin: OK. Oh God, why hast thou forsakenme? Again? Who am I in front of?

Wobbles joystick. The bloodless face of DJ Voldemortsmiles from the screen.Squirrel Nutkin: He Who Must Not Be Named! Hemust be here on a day trip to scare DJ Cuddles.

More wobbling reveals court 2’s lay bench in action.The chairperson’s current performance is displayed

behind her on the court video screen.Celia WatervoleSeeded: No. 643Guidelines Hit Rate: 61%Latest Form: “Could do better”- HHJ Shrew, ILCC,29/8/13Career High: “ The day I understood theDangerous Dogs Act”Career Low - “ What the **** was she thinking!”-LCJ Penguin (R v Camberwell JJ ex p Thug)Chambers 500: “ Not so much wet as dripping”Today’s figures: RIC: 5; Bail: 0; CustodialSentences: 6; Community Penalties: 0.

Squirrel Nutkin: Time to switch Norbert to court 2,time to smarm a list caller...Felix Mansfield: Won’t work, Squirrel. She’s normallypretty fluffy but look at today’s stuff. Pure porridge;ABH, Voldemort’s kicking her backside and Norbert’sform is thicker than the Office Manual.Squirrel Nutkin: Cynic! Just watch court 2 this afternoon!Later, in court 2Marty Mole (list caller): Sorry madam, Mr Nutkin is inthe youth court.Later stillMarty Mole: He was in the cells, Madam, but I can’t findhim now.

Finally, at 4.29 pmCelia Watervole: Mr Nutkin has said all he possiblycould...disgusting act of violence...cannot condone...Wanda Rabbit (legal adviser): Are you thinking ofcustody, Madam?Celia Watervole: He’s wandering down the road withthe victim’s bloodstained trousers in his hand, what doyou think we are going to give him, an ice cream?Wanda Rabbit: (as if addressing a moronic 10-year-old) DJ Voldermort has wildly overshot our custodyallocation. Forgotten the HMCTS final seasons figuresare out tomorrow? That Camberwell is one short onits target on unpaid work? That we are tied withSkegness and facing relegation to the Ryanair League?Their court 3 has just retired on a shoplifting.Celia Watervole: (steeling herself) Not a CommunityPenalty Shoot Out?Wanda Rabbit: (solemn pause) Your worships mustscore on the last case.Celia Watervole: You mean...?Wanda Rabbit: It is, of course, a matter for yourdiscretion. To assist you, there are 30 seconds of extratime.Squirrel Nutkin: (triumphantly) Further, my clientdidn’t feed his goldfish before he was arrested andfears for its long-term well-being, should he receive acustodial sentence.Celia Watervole: Given that last information, MrNutkin, we feel able to order 40 hours unpaid work.

Breaking NewsSkegness Scuppered - Camberwell CeliaCongeals ya! “Ice Cold” Watervole drills killer thriller!

– Bruce Reid

12 SEPTEMBER 2012

Advocate

Court Performance