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7/31/2019 London Advocate Issue 69
1/12
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
7/31/2019 London Advocate Issue 69
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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
TRAINING OFFICER
Jonathan Black
BSB Solicitors
5-7 Euston Road
London NW1 2SA
DX 37905 Kings Cross
T 020 7847 3456
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
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
LCCSA WEBSITE
www.lccsa.org.uk
7/31/2019 London Advocate Issue 69
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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:
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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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
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
7/31/2019 London Advocate Issue 69
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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
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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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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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10 MAY 2012
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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11MAY 2012
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.
7/31/2019 London Advocate Issue 69
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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