The Rise and Fall of Legal Aid by Alured Darlington by Benham Publishing Limited

The Rise and Fall of Legal Aid The Rise and Fall of Legal Aid

By Alured Darlington Second edition assisted by Seema Dosaj

The Rise and Fall of Legal Aid

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â&#x20AC;&#x2DC;Dedicated to Evadne J, without whose sacrifice for her mother, sections of this book would not have been possibleâ&#x20AC;&#x2122;

The Rise and Fall of Legal Aid

CHAPTERS 1.

Why Write This Book?

Introduction.

The Missing Witness.

Other Criminal Work.

Divorce Work.

Domestic Violence work.

â&#x20AC;&#x2DC;I have been having second thoughtsâ&#x20AC;&#x2122;.

The CPS.

R v Charmaine D.

10.

Olga Heaven MBE and FWP Hibiscus.

11.

The Aramah Guidelines.

12.

R v Attuh Benson.

13.

R v Laurence F.

14.

R v Shanika Y.

15.

R v A.

16.

R v Sandra G.

17.

Role of the Court of Appeal.

18.

Newton Hearings.

19.

The principle of legality.

20.

Imprisonment for passport offenders.

21.

The CPS and rights of audience.

22.

The new sentencing guidelines.

23.

Sole or Primary carer for dependent relatives.

24.

R v Boakye and R v Fascina.

25.

Early Compassionate release.

26.

Local Law Societies.

27.

Judical Reviews

28.

Crown Court Advocacy. The way ahead.

29.

Conclusion.

30.

About the Author. The Rise and Fall of Legal Aid

Foreword by Jean Brathwaite, Legal Secretary.

“I truly hope this book is published - there was a time when everybody was entitled to be represented and put forward their defence, innocent until proved guilty. Without legal aid to give clients the representation everyone deserves, what will become of our society? I honestly dread to think. This book will be a reminder of the ‘good old days’ and an insight to young ones into the legal aid system as it was and how it should remain” (See Chapter 6).

The Rise and Fall of Legal Aid

Chapter One.

Why write this book? The answer lies in the fact that it appears I am one of a dying breed. The legal aid scheme came into force shortly after the war and probably reached its peak in the second half of the last century. Since then it has been slowly run down by Government cuts and is now only a shadow of what it used to be. The latest initiatives of Justice Secretary Christopher Grayling threaten its very existence to the extent that one wonders whether he understands what a legal aid solicitor actually does. He has now been succeeded by Mr Gove. This book is intended to cure that deficiency coupled with some observations as to how the existing system might be improved. Not only does the practitioner have to face actual cuts but the Legal Aid Agency appears to have difficulty in making prompt payment for work done. The latest Chief Executive has worked very hard to speed up the processes with some success but the problem is that the rules are so complex and their own staff cuts so severe that they cannot always properly consider claims that can make all the difference to a firmâ&#x20AC;&#x2122;s survival. The Legal Aid Agency is also kept to a very tight budget so it does try to reduce the larger claims â&#x20AC;&#x201C; at times ignoring judicial authority to the contrary. Only a firm with very deep pockets or cross subsidisation from other forms of work can survive this. I have only been able to do so I because I now work from home and so have no rent to pay. Yet this should not be because I hope this short book will show that legal aid work can be a powerful force for good. It is also the truest arbiter of what makes a really civilised country where all its citizens can live securely. I have been very privileged in the type of client I was able to serve but all legal aid lawyers are engaged in maintaining the balance between the State and those it seeks to control and the existence of legal aid lawyers is vital. The savings that can be made from ensuring that people who should not be in prison are not sent there must be considerable and obvious as the cost of maintaining each prisoner runs to tens of thousands of pounds per year. But the cost of preventing or correcting injustice must be incalculable not only to its victim but to the society in which such injustice takes place. An injustice anywhere is a threat to injustice everywhere. As Winston Churchill said the touchstone of a civilised society is how it treats its most vulnerable citizens. It has also been well said that the only condition for the survival of evil is when good people do nothing. Mr Grayling must step back and stop undermining the very people who are dedicated to preventing injustice. It has been estimated that even before the latest rate cut that any litigator fee work exceeding 5 hours would mean the case was no longer profitable. Some firms have taken this literally with exhortations not to exceed this amount of time in preparation. Two of the cases referred to in this book, (Laurence F and Shanika Y), which I took to appeal demonstrate that if the necessary and proper amount of preparation time had been taken then there would have been acquittals at the original trials. Both of these defendants had been convicted at their

The Rise and Fall of Legal Aid

original trials and received substantial terms of imprisonment. The defendants were lucky in that flaws were found in the original trial process so they were given a second chance. Mr Gove must understand that only full, fair and prompt payment for litigation work will ensure that such miscarriages of justice will not recur. What the case of Laurence and Shanika clearly show is that if case preparation is limited to about five hours, as may have happened in their first trials, then the client is likely to lose as in fact occurred in both cases, On the other hand, as will be explained later, if such cases are properly prepared then the reverse is likely to occur as happened in their second trials. The introduction of fixed fees to cut down paper work on the basis that the simple cases will subsidise the difficult ones is sensible and reasonable. But there should either be an option to individually tax, (assess), cases as complex as Lawrence and Shanika or the fixed fees should be raised. They certainly should not be lowered. I have only successfully appealed three of such cases of wrongful conviction. What I most respectfully ask Mr Gove to consider is how many other people are in our prisons who should not be there and can he please take the necessary action to endure this does not happen again? It can only be described as a matter of profound regret that there are currently in place Government revised plans to change the rules on granting permission for Judicial Review which is one way in which wrongful convictions can sometimes be challenged. I should also add that obtaining legal aid in the first place has now become a bureaucratic nightmare with forms with dozens of questions to be answered and queries raised in respect of them. A colleague told me that he supplied an application form in respect of a homeless man whose only means of support was handouts from a local church. â&#x20AC;&#x2DC;How much was received from the church?â&#x20AC;&#x2122; was the question that had to be answered before legal aid could be considered. Sometimes the work involved in obtaining legal aid, and then being paid for it, exceeds the amount of work involved in actually doing the case. Both Mr Grayling and Mr Gove have put forward further proposed fee cuts of 8.75% which if implemented, will make criminal legal aid work so uneconomic that in many cases it will be impossible for firms relying solely on this work to continue. This especially applies to small firms from black and ethnic areas. Firms have already closed down and many more will follow if these cuts are implemented. Legal aid deserts in areas of the country will develop with the inevitable consequence of more injustices and overcrowded prisons.

The Rise and Fall of Legal Aid

Chapter Two.

Introduction.

I never intended to become a lawyer, legal aid or otherwise. It was chance, and perhaps also providence, that led me to become one. My Father had been a friend of Lord Denning at Oxford and he was best man at my parents wedding but he was never an influence on my career choice. Many years later my father told me a story which he appreciated he was telling against himself. In their early years after leaving Oxford Lord Denning was a young barrister and my father a Church of England clergyman but still they kept in touch. On one occasion my father told me that he had told Lord Denning that he could not understand why he had chosen to become a barrister ‘when there was no opportunity of doing good’. My father told me that for the first and only time on their friendship Lord Denning was absolutely furious and told my father that he had no idea what he was talking about. Only when Lord Denning was at the height of his fame did my father finally understand what Lord Denning had meant. With regard to my own career I was so undecided that on one day I had decided to join the Kenya Police force and virtually on the next day I agreed to become articled to the Town Clerk of Chingford. This was simply a means of entering a profession with the added advantage of the local council paying me a salary. There I worked under the supervision of Ernest Bleakley, who was what was known as a managing clerk, and was the finest and most precise legal draftsman I have ever met. But when I eventually qualified after 6 years of working by day and studying four hours each night I still did not feel like a proper lawyer. I had never met a real client as the council was my only client. I knew how to mortgage a house but not how to buy or sell one. When I qualified I was offered a job managing a branch office off a firm practising in Southend on Sea. I agreed to take it. I should never have been allowed to run a branch office unsupervised whether in Southend on Sea or anywhere else. I had no experience of private practice and had not studied family law at Law School. I learned on the job. When I came across a new topic such as the Married Women’s Property Act. I would travel up to London and buy a practice booklet on the subject from one of the legal bookshops off Chancery Lance. I used good young counsel at the start of their careers, such as the young Anthony Scrivener, now an eminent barrister, and somehow managed to survive without any legal catastrophe that I am aware of. I then moved to various other firms, including a local council again for a time. By 1965 I was the manager of Gillham’s branch office in Acton, who eventually sold the goodwill to me. I opened my own practice soon to become Darlington and Parkinson of which I was senior partner for 25 years. A year after opening my own firm I needed a new solicitor for our Ealing office. A young solicitor, Graham Parkinson required more money than I was prepared to pay him, and I nearly lost him, but eventually we came to an agreement and were partners for 12 years. It was a good partnership with Graham more business-like than I was. Graham left to become a stipendiary magistrate from which he progressed to chief metropolitan magistrate. We were joined by many able legal aid lawyers including Peter Jones, Kenneth Grant, Adrian Worthington, Karen Venables, Ann Grubb, Sheila Kavanagh, Felicity Shakespeare, Jane Smith, Felicity Lavelle, Robert Brown, Alice Kirwan, Kathy Thomas, and her partner Graham French – the first four of whom subsequently became judges. I apologise to others not named but they are too numerous to mention. The Rise and Fall of Legal Aid

Robin Auld, later a Court of Appeal judge, and author of the Auld review on criminal justice was a much prized advocate when he was available. I was struck by his independent spirit when he insisted on bringing me to the bar robing room at a time when solicitors were not welcome there.

The Rise and Fall of Legal Aid

Chapter Three.

The Missing Witness Every lawyer remembers his first murder case and I have no difficulty in remembering mine even though it was nearly 50 years ago. The alleged murder related to a man accused of stabbing to death his wife’s lover. There was no doubt that he had done so and the only possible defence to murder was provocation. The defendant said that there had been a confrontation outside the victim’s house when something had been said that caused him to snap. I did not at the time have any regular practice at my local magistrates so was quite surprised when a legal aid order for a murder case arrived in the post, I had not received any recommendation for this case nor had the client asked for me so it could only have come through the Court office. I do know that about that time I had had a confrontation with the Chairman who made an observation which could have been interpreted as meaning that I had mislead the Court. I certainly had not done so but felt that if I did not have the confidence of this court. I could no longer practise there because this purported lack of trust could rebound on any client that I represented. I wrote to the Court and said that this was my intention. By return of post I received a letter from the clerk inviting me to see him. I did so and was assured that the Chairman has been wrong and inviting me to continue to practice at the Court. I continued to do so for the next twenty five years. I obtained instructions from the client, briefed John Hasan QC and Alistair Troup and believing that I had done everything possible, went on a family holiday to the North of Scotland. It was while I was in Scotland that I realised with mounting horror that there was something that I should have done. The only witnesses to the confrontation were the defendant and the deceased victim. Apparently no one else had seen or heard it. But it was essential to check this out and I had failed to do so. The trial was already listed for hearing after my holiday. Accordingly I cut short my holiday, went to the street where the killing had taken place and knocked on each door to find out if the householder had any knowledge. Every householder had no knowledge but there was just one exception and he was vital. He recalled the conversation and that just something had been said by the deceased that could be interpreted as reflecting on the defendant’s sexual performance. That was enough to warrant him being called as a witness and he agreed to do so. I attended the trial with both defence counsel but when the time came to call the witness he was nowhere to be found. I made a desperate phone call to my articled clerk Mike Reed who by a miracle found the witness in a pub and persuaded him to accompany him to court where he gave evidence in accordance with his statement. But that did not mean that the defence had nothing more to establish. There was a weakness in the defence account which was not in dispute, the defendant stabbed the victim with a knife that he had brought with him from his own home. This threw doubt on the defence that it was the deceased’s remark that led to his death. The Rise and Fall of Legal Aid

In the event it was leading counsel’s powerful speech that proved just enough to persuade the jury to acquit the jury and substitute a verdict of manslaughter on the grounds of provocation for which the defendant received a sentence of the three years imprisonment. But the essential element of this case, which I would ask Mr Gove to consider, is that but for the witness, it is very likely that the defendant would have been convicted of murder, and if still alive and at liberty now, would still be liable for recall on licence. Success or failure in any criminal case cannot be determined by a half- hearted cost conscious attempt to do the minimum work that appears necessary because there will always be work that in the event does prove to be necessary and which makes all the difference. This was also very apparent from Lawrence’s F’s case referred to in Chapter twelve. The devil is indeed in the detail. Michael Reed one of my first articled clerks, and still practising, was a joy. Originally trained as a barrister he had rebelled at was then the elitist attitude of the senior profession which he regarded as snobbish and inconsiderate. He turned to the solicitor’s branch as being more concerned and interested in the client. He obtained high marks in his examinations and is a quietly spoken and persuasive advocate. He was delightedly unconventional and sometimes wore sandals in court. My only other murder case was simpler and involved a man who had formed the conscious belief that his computer was in some way effected by evil spirits .I advised in this case that there should be a full comment interview when the defendant’s delusions were made very clear. The judge ordered a hospital order and the defendant was released from hospital two years later.

The Rise and Fall of Legal Aid

Chapter Four.

Other criminal work My only other criminal work at the time usually involved shoplifting but in my case with a difference. Just down the road from my office lived a woman who was frequently arrested for this offence. From time to time I would see her in my office completely distraught when she would inform me that she had been arrested once again for this offence. But the facts were always the same. She did not deny that she had been caught shoplifting but had absolutely no recollection of doing so. Moreover the ‘thefts’ always related to items she neither wanted nor needed. She had a caring and considerate husband. I consulted a physiatrist Dr Gerald Silverman of Ealing Hospital who had other women patients who showed similar behaviour and had formed a theory about them. This was that these ladies all felt trapped in marriages from which they felt they could not escape. The shop from where they stole was an extension of the home which they attacked by shoplifting from it, unknowingly and subconsciously, as being their only means of release from their predicament. Of course if Dr Silverman was right, it meant that there was a defence available to the client of automatism. I will never know whether he was right or not because when the proposed defence was raised with the prosecution the matter was not pursued and settled in some other way. Dr Silverman’s theory was never tested in open court by an opposing prosecution physiatrist and the client joined Dr Silverman’s small band of patients. I would be interested to know of other lawyers who have come across this defence. I would like to describe however a typical case where we were able to make a difference which I will describe as Mr X who was a man of previous good character from an East European country. An allegation was made by a local woman in the UK that he had sexually touched her. Mr X vehemently denied this but was not believed and remanded in custody for five months until his trial date. As part of our normal practice, we insisted on disclosure of all and any material in police hands relating to the complainant who the prosecution frequently refer to as ‘the victim’. This material was only produced on the day of the trial and revealed the alleged ‘victim‘ had a long history of similar complaints all of which were found to be groundless. The prosecution withdrew the charge and the judge was scathing in his comments to the officer in the case who went bright red. We advised Mr X to seek compensation but he was so bruised by his experience that he returned immediately to his own country. We had a similar case, which we will call Mr Y some years later, where the defendant was acquitted but in this case he was luckier as he had been on bail pending trial. I think but cannot now be certain that Mr Y was a British citizen.

The Rise and Fall of Legal Aid

Chapter Five.

Divorce work As an all-round lawyer at the time I became involved in Divorce work which resulted in attending the Court of His Honour Judge Duveen at Slough. The judge had very much his own style. It is said that when he met the Queen he told her that he was ‘her’ judge which was literally true as Windsor fell within the Slough court area. He would pack his court with as many undefended divorces as possible preceded by a number of injunction hearings. It was no good seeking to argue a point of law. The invariable reply would be. ‘This is not the Court of Appeal. It is the Slough County Court’. But Judge Duveen was fair in accepting a point of law if was made clear to him. On one occasion I gave instructions to my new assistant solicitor Naomi Angell in her first divorce case. A short time before there had been a detailed description in the ‘New Law Journal’ as to how to obtain costs against a co-respondent in an uncontested divorce case - something that had never previously been attempted. There was a complicated structure of notices that had to be served together with proof that that had been done. I instructed Naomi as to how to do this. At court Naomi went through with this procedure to the growing frustration and impatience of Judge Duveen but Naomi plodded on. Eventually the penny dropped and a decree nisi was ordered together with costs against the absent co-respondent. ’I have never seen that done before’, Judge Duveen said to Naomi, in the presence of an audience of admiring young barristers, and she returned to the office glowing with pleasure after her very public success. This certainly must have done a lot for her confidence. When I last heard from her a year ago she was Chair of the Law Society Family Law committee. I do not say that some divorce petitions should not be defended. There may be a limited number that should. But if people should wish to do so they should be prepared to pay the costs themselves. I did learn what a colossal amount of time contested divorce proceedings (as opposed to contested adoption, custody or contact proceedings) took and in that respect I do agree with Mr Grayling that the public should not have to pay for them. A client had been offered a legal aid certificate to defend a divorce subject to a legal aid contribution of under £10. As she failed to pay it I did so myself resulting in lengthy and totally time wasting contested divorce proceedings. I resolved never to repeat this action. On the other hand there were cases where divorces had to be persisted in despite opposition. One client from one of the refuges alleged assaults and abuse which were firmly denied by the respondent. However the respondent had been married three times before. A trip to the Divorce Registry by my articled clerk Liz Dowell revealed that all three previous wives had made similar allegations and the opposition to the divorce collapsed.

The Rise and Fall of Legal Aid

Chapter Six.

Domestic Violence work. In 1978 I was still a private practitioner and as such I was instructed by three local women’s refuges to act on behalf of their clients in obtaining protection orders and/or custody orders. At the time the police were not interested in ‘domestics’. They were regarded as family matters which did not merit police attention. The three refuges were Chiswick Women’s Aid, headed by the redoubtable Erin Pizzey, Ealing Women’s Aid and Acton Women’s Aid. I appeared to be the only solicitor in Ealing instructed to carry out this work .I was told by one client that I was the thirteenth solicitor she had consulted as none of the others were interested in this kind of work. And I did not think it right to represent only women. I defended men also if they asked me. Thus domestic violence work became a full time occupation. Erin Pizzey, the pioneer of the Women’s refuge movement, was a law unto herself. The refuge she ran in Chiswick broke every safety law in the book but somehow she avoided prosecution or closure. Her philosophy was that that no one who sought refuge should ever be turned away. It may be because of that that the local council turned a blind eye to her activities. In later life she became somewhat disenchanted by the number of women who returned to their abusive partners but remained a force to be reckoned with in the women’s refuge movement. Sometimes in obtaining the return of a missing child it was necessary to go the High Court to make the child a ward of court. In one case before doing so it became necessary to shield the child at our home. On taxation, (assessment), of our costs the taxation master insisted on giving me an additional sum for what he described as ‘the tea and biscuits’. The practice would open at 8.00am and shortly thereafter a client would arrive, a statement would be taken and typed by my secretary Jean Brathwaite. Legal aid would be obtained over the phone. Shortly after 10.30 I would have obtained an ex parte, (without notice), order from Brentford County Court. An enquiry agent was instructed to serve it and if the matter was contested counsel, which included the young Cherie Blair, would be instructed to attend the return date. In emergencies I sometimes had to obtain orders from judge’s homes. Jean Brathwaite merits special mention. If there was a prize awarded for the world’s worst and most inconsiderate boss during the time that Jean Brathwaite was my secretary I must be right up there. But equally if the prize was awarded for the most loyal and faithful secretary despite the unrelenting demands put upon her then Jean should win it unreservedly. I am ashamed to say that even the time she spent in the toilet was monitored and if she rung up saying that she was sick she was told not to worry as a minicab would be sent to fetch her. But Jean stuck with me for at least 12 years because she fully understood the nature of the work she was doing and how vitally important it was to vulnerable men and women. In her own words she cared deeply about it. She knew that she was an essential cog in an office which was a profession and not a business. We are still in touch and she always refers to the time she spent with Darlington and Parkinson as being the happiest of her working life.

The Rise and Fall of Legal Aid

All three refuges had clients who needed ouster injunctions but were unable to obtain them if they were unmarried because of the existing state of the law which only permitted ouster injunctions if the parties were married.

Graham Parkinson, Jean Brathwaite and Alured Darlington

The Rise and Fall of Legal Aid

Chapter Seven.

‘I have been having second thoughts’ In late 1978 I was in Court One of the Royal Courts of Justice acting out my role of instructing solicitor. My leading counsel was James Comyn QC, doyen of the Bar, and who was to be appointed a High Court Judge a month after the case. My junior counsel was Judith Parker also due to be appointed a High Court Judge - but thirty years later. The respondent was represented by counsel of equal eminence. The Court consisted of Lord Denning, then at the height of his powers, (and some might say at his most provocative), Mr Justice Baker the President of the Family Division, and three other judges. The Court had been increased from a normal three judges to five in an attempt to justify the Court of Appeal departing from earlier decisions that held that a woman cohabiting with a man, but not married to him, was not entitled to obtain an ‘ouster’ injunction requiring him to leave the home. The law appeared to have been settled by two cases, Cantliffe v Jenkins and B v B which held that ‘An Englishman’s home was his castle’. The most an unmarried partner could hope to obtain was a non-molestation injunction. This gave her no real protection when the parties were still living together in the same house. It was only after the hearing that I learned that County Court Judges up and down the country had been entreating Mr Justice Baker to look into the situation and he had consulted Lord Denning when the fresh challenge in this case came before the Court. A few minutes before the hearing was due to begin my client Ms D told me that she was having second thoughts about whether to proceed with her claim to oust her partner Mr J. I told her that was absolutely fine by me and that if that was going to be her decision all she had to do was to let me know. I took the view that as she was the client it was her case and no one else’s. She had absolutely the right to proceed or not to do so as she thought fit and I had no right to influence or impede her decision whatever important legal issues there might be at stake. Before I turn to what happened next I will provide some back ground as to this case. By chance Ms D had been advised to appeal to the Court of Appeal on an unrelated issue and it occurred to me that one could add to those grounds an additional ground of appeal challenging the existing law that an unmarried woman could not obtain an ouster injunction. There appeared very little to lose and one could see what happened. Little did I know at the time that there was so much concern about the issue among the judiciary? In any event the additional ground of appeal was added and Lord Denning was appointed to try the case. Shortly afterwards I received a message from his clerk that he would like me to obtain a strong advocate to represent Ms J, so I set about finding another lawyer. I mentioned to Lord Denning’s clerk the name of Mr X, the writer of a well-known legal text book, and there was a stony silence. I then consulted James Comyn’s clerk. James Comyn was the leading civil lawyer of the day. I explained that I did not have legal aid to argue this point but would he accept a nominal sum of £100 to take it on in view of Lord Denning’s request? To my relief he agreed to do so. I then applied formally for legal aid but was refused because of the existing legal precedents. In the meantime the case proceeded and I heard nothing more from Ms D about not proceeding with the case. The Rise and Fall of Legal Aid

The following day the case covered the front page of the Times with the predictable headline ‘Is an Englishman’s home his castle?’ I forthwith rang the Area Secretary of my local legal aid committee ‘Had he read the Times this morning?’ No he had not. ‘Would he please do so and would he now please grant legal aid’ His answer was ‘Yes’ to both questions. It is important to note that there was then sufficient flexibility in the legal aid system to do this sort of thing. The case now proceeded in its expected conclusion by a majority with the judges agreeing to change the law so that an ouster injunction, even if the parties were not married, was lawful. An appeal by the defendant to the House of Lords was not successful and I got my £100 costs back. The preceding law was clearly wrong as it preferred property rights to personal rights but it reflected the attitudes of the time. Had D v J not been heard the law would have been changed eventually, probably by statute, but it would have taken time, perhaps years, during which many unmarried partners and their children would have been at risk of injury or death. The intervention of Lord Denning had been crucial.

The Rise and Fall of Legal Aid

Chapter Eight.

The CPS

By 1989 the firm I had founded had grown to seven partners and some 25 staff but I no longer felt part of it. I no longer undertook domestic violence work which I believe should only be undertaken for a few years and I was tired of it as it is very demanding emergency work. Accordingly l was no longer one of the firm’s ‘rainmakers’. I had become a passenger. The only solution was to leave and I found the newly created Crown Prosecution Service an attractive prospect with its concept of being ‘fair to everyone’. I joined the CPS as a junior prosecutor and it was the best career decision I ever made. By the time I left I had a new skill. I was a criminal lawyer. The move to the CPS was none the less a struggle. At the age of 55 I had moved from the position of senior partner to a junior employee in a large organisation. Senior prosecutors I had met at court on equal terms were now my superiors. There was a hierarchy in the CPS but as a prosecutor I learned a lot and the staff were congenial and helpful. In 1995 I reached 60 years of age and as a civil servant was required to take compulsory redundancy but I had formed views as how the CPS could be lifted from its state as a pariah organisation and expressed these in an article in the New Law Journal which is referred to in Chapter twenty one. I still believe that the widespread practice of Crown Court in house advocacy is the key to a rehabilitated and virile CPS for the reasons set out in the article.

The Rise and Fall of Legal Aid

Chapter Nine.

R v Charmaine D. ‘I telephoned Jamaica and heard the chickens in the background. Only then could I really believe that she was home’ My legal career may well have ended with my retirement from the CPS but chance intervened with a call from Tom Cryan, senior partner of a local firm of solicitors. ‘Would I be interested in working for him? I gladly accepted and during my employment represented my first ‘drug mule’. Charmaine D was charged with knowingly importing cocaine to the UK. She did not dispute that she had brought in the cocaine but denied knowledge that she knew it was cocaine. She said that she had been told that it was medicine. Moreover she had seen a film to that effect. Steve Green, the firm’s legal executive, was not enamoured by this defence but when I left T. Cryan and Co he sent me a poem which I still cherish and part of which I set out below. Every stapler disappeared Within weeks of his arrival To save the stationery that was left Became a battle for survival It soon became apparent Here was an advocate with style Despite his irritating habit Of leaving his lunch inside his file No one could read a word he wrote His dictation often rambled His mobile phone was a no go zone And the office alarm, he scrambled (But) We will never forget his great campaign To secure an acquittal for poor Charmaine Who, prior to boarding a London plane Had consumed a quantity of cocaine And while her defence appeared inane His enthusiasm never waned And with the expert evidence that he obtained Six months later, she went home again But the expert evidence I obtained was not rocket science. I simply decided that she should be tested on her IQ which it appeared had been hidden by her thick Jamaican patois accent. In fact it revealed an IQ of 49 which in those days was described as mental handicap. She did not even know that there was a place called England. She simply referred to it as “Foreign”. Moreover enquiries showed that there had indeed been a film such as she described.

The Rise and Fall of Legal Aid

Charmaine resisted the attempts of my wife Tass to make her look more demure and presentable for the trial and appeared at court in what she considered was her most glamorous outfit. She had been fasting and collapsed on the Court floor on her return from giving evidence. However, after only a short jury retirement she was acquitted unanimously. Customs were totally unprepared for her acquittal and after the trial Charmaine was left in the cells at Isleworth Crown court. She had never been outside Jamaica before. My wife who had attended the trial went down to the cells and asked if she might take her home. She was handed over to her and we took her home where she stayed with us for several days and enjoyed shopping in Ealing Broadway. After a few days Customs phoned my wife when the conversation went as follows:Customs. Do you know where Charmaine is? Tass. Yes she is with us. Customs. We want take her back to Jamaica. Tass. Is she booked for a flight to Jamaica then? Customs. No. Tass. Let us know when you have done so and we will bring her to you. When the call came, we delivered Charmaine to Customs at Heathrow and saw her off. But I could not really believe she was home until I telephoned her in Jamaica and heard the chickens in the background.

Chapter Ten. The Rise and Fall of Legal Aid

Olga Heaven MBE and Hibiscus Our success with Charmaine led us to being instructed by other drug mules and joining forces with the formidable Olga Heaven MBE, Director of the Charity Hibiscus, which was founded by her to support the families of drug mules from the West Indies and Africa. Olga had first-hand experience of the result of the Court’s policy of zero tolerance towards drug importers known as the Aramah Guidelines. These guidelines often left courier’s families without support and unsupervised. She had personally found abandoned children living under corrugated iron sheets. Many of these drug ‘mules’ from Jamaica were exceptionally poor, came from deprived or remote areas, were frequently semi-literate and with low IQ levels. They had scant idea of what they were getting themselves into and some thought, and had been told by the dealers, that if they were caught they would just be sent home. The implementation of the Aramah guidelines over many years since1982 meant that the prisons were often full to overcrowding with prisoners from the Caribbean. Many were unmarried mothers who had sole responsibility for the children which they consequently could not provide while imprisoned in the UK. Some of these children fell into prostitution or joined drug gangs. In order to raise awareness of the problem Olga Heaven convened a conference in Kingston Jamaica to which I was invited together with other professionals in this field including police, customs, prison staff, and immigration staff, a serving Crown Court judge and some former drug mules. I was to host a phone in radio programme and later we were to visit a Jamaican prison. We were privileged to meet at the conference many outstanding people including the then Governor of Cookham Wood prison, called locally ‘Little Jamaica” because so many Jamaican drug ‘mules’ were imprisoned there. The Governor insisted on visiting Trenchtown, the home of Bob Marley and a dangerous area for visitors, so that she could at first-hand experience the type of environment and living conditions that many of her prisoners came from. She did so despite warnings from members of our group who had been into Trenchtown the previous day, supposedly under safe conduct, and found ourselves under crossfire from the rival factions as we left. We also met the English Director of Immigration, who made it his business to visit detained drug mules and who told us that when he looked into the eyes of those young girls he saw the eyes of his own daughters looking back at him. The Deputy Assistant Commissioner of the Metropolitan Police was also present and was prepared to acknowledge that the distinction between criminal and victim became blurred at the mules’ level on the bottom rung of the drugs trade. My wife, Tass, came as my guest but in the event her contribution was invaluable. Her background was in advertising and she made the practical suggestion that the approach to potential drug couriers should be educational as to inform them as to what they were getting involved in and what the consequences were likely to be if they were stopped. In addition to the long prison sentences with the effect on their children they would be treated as outcasts on their return, often with their homes and children gone, and unable to find work. There were frequent suicides. They would die painfully if capsules burst inside them. There should be a publicity campaign to warn drug couriers of these dangers.

The Rise and Fall of Legal Aid

Mike Fuller, a police representative at the conference, who was then Chief Constable of Kent, and now is an Inspector of Constabulary, was enthusiastic in his approach to this proposal which was then adopted by the conference. Accordingly with assistance from Hibiscus and funding from the Foreign Office Tass then produced a poster in comic form designed to be understood by semi-literate people. The subject in the poster was in fact Evadne J, but with some dramatic and artistic licence. This was followed by Tass activating her former colleagues to produce the animated film ‘Eva goes to Foreign’ based again on the experience of my client Evadne J. This was funded by Hibiscus with financial assistance from the Foreign Office. Tass recruited one of the world’s leading art directors Neil Ross, who had directed Charlie and the Chocolate factory, and was an internationally known film designer, to direct the film. This was played regularly on Jamaican TV and in cinemas and resulted in a dramatic reduction in the importation of cocaine from that country. ‘Eva goes to Foreign’ was subsequently awarded the title of best documentary of the year in the United States. The poster Tass prepared for Jamaica was followed by one for Africa where the format was redesigned to reflect the somewhat different circumstances there.

The Rise and Fall of Legal Aid

Chapter Eleven.

The Aramah Guidelines Charmaine’s experience had encouraged Tass and me to visit other drug mules in prison on a social basis. We did this for some ten years. We were struck by the fact that they were not criminals in the sense one normally understands that term although three of them had obviously committed a very serious crime. On the contrary they were very devout and law abiding women deeply concerned as to the welfare of their children. They were all of previous good character We believed that none of them would have got into that sort of trouble had they been in England, and had poverty and circumstance not been the driving force, because in the UK the NHS, the schools and social services would have taken care of their problems. Our overwhelming feeling over the years, as we saw clearly good mothers stagnating in prison while their children remained at some risk in Jamaica was ‘what a waste’ and we formed the view that there must be some better way of dealing with the problem other than by imposing inordinately long prison sentences. Evadne J was faced with the type of decision that would never arise in this country where we have a National Health Service. Over time we became convinced that the Aramah guidelines which put them in prison for long periods leaving their children unsupported were wrong and needed attention. The case that brought this home was Evadne J. referred to above who was an uneducated mother in Jamaica whose own mother was dying from cancer and in great pain. She was told that only an operation might save her. It appears that there might have been some collusion with the hospital because she was approached by drug dealers who offered her financial assistance if she imported cocaine to the UK. This she did and even paid for her own plane fare. It appears that she had been targeted because of her vulnerability. There was no personal gain for her. She had received six years imprisonment. Her mother died after Evadne’s conviction and her four year old son back in Jamaica kept enquiring whether she still loved him I challenged the sentence without success in the Court of Appeal but the Court’s observations made a slight dent in the guidelines which encouraged a further attempt to challenge them. I wrote an article about the plight of the drug mules in the ‘New Law Journal’ printed here.

The Rise and Fall of Legal Aid

Chapter Twelve

R v Attuh Benson In mid-2004, I was invited to represent the above lady in her appeal against conviction. However I learnt that she had already appealed herself against her sentence without trial counsel’s agreement and that appeal was pending. Understandably her trial counsel did not want to get involved at that stage. As by then I was already committed to her case I agreed to represent her in her appeal against sentence as well. I was much luckier with this case where I had submitted a skeleton argument to the Court of Appeal submitting that the Aramah guidelines were not appropriate for defendants from third world countries. This was accompanied by an article I had written about Hibiscus. It appeared I had struck a sympathetic spirit in Sir Anthony Hooper who directed a trial before the Lord Chief Justice with what he described as a ‘brief’ from Hibiscus. But these hopes were shattered by a later letter from the Court of Appeal office that the appeal would not be heard by the Lord Chief Justice but by Lord Justice Rose who was a supporter of the Aramah guidelines par excellence. Every appeal there had ever been concerning the guidelines had met with his enthusiastic support for them. The hearing time was also reduced to two hours and it appeared pretty clear which way the wind was blowing and that the substantive issues would not be addressed. I conducted Irene’s appeal against sentence myself but was greatly assisted in its preparation by the tolerance of my then employer Raj Veja who allowed me unlimited time to do so and was equally generous with the time of his excellent secretary, Flo. I sought to argue that the Aramah Guidelines were inhuman and inconsistent with both British and European Law. I submitted that drug offenders with dependent children who came from undeveloped countries should be treated more leniently than other offenders domiciled in the UK. Couriers and their families suffered far greater hardship from a lengthy sentence of imprisonment as they were likely to serve their sentences thousands of miles from home in a foreign country. Previous decisions of the court when dealing with cases of drug importation appear to have adopted a ’one size fits all’ sentencing policy which conflicted with general sentencing principles, International Conventions as to the welfare and rights of young children, the United Nations Convention on the Rights of the Child and the European Convention on Human Rights. It was submitted that the Court should revisit Aramah since it was apparent that the deterrent element in sentences for drug couriers had not worked also that personal mitigation was being ignored and that long sentences imposed in accordance with the guidelines had become disproportionate and arbitrary. I asked for reconsideration of a sentencing policy which I described as inhuman. It was submitted that the present policy was ineffective, penalised the vulnerable and put unnecessary pressure on the overcrowded prison system. Also that there should be a more refined distinction made between the level of sentence imposed on the low level drug couriers and those involved higher up in the organisation. Couriers would often be uneducated and vulnerable persons susceptible to pressure and uninformed about the approach adopted by the British Courts to cases of drug importation. I accepted that deterrence was a legitimate policy but it was only a legitimate element of sentencing policy if it could be shown to work. Couriers coming from different countries throughout the world were either ignorant of the sentences that were likely to be imposed by courts in the UK or The Rise and Fall of Legal Aid

were deliberately misled by the organisers of the criminal enterprises. The system of deterrence was not working. Perhaps surprisingly the Court said it agreed, 2 years was deducted from the sentence but with Lord Justice Rose presiding the appeal was not successful in establishing the principle that I sought namely that the Aramah Guidelines were inappropriate for defendants from third world countries as prisoners had no idea whether their children were being cared for which was the greatest hardship of all. However Lady Justice Hallett who gave the judgment did indicate that it was open to the Sentencing Council to reconsider them. The case is reported in ‘Criminal Law Review’, in March 2005, page 243 and so Mrs Attuh Benson name can be referred to in full in this book. A few weeks later I received a call from the then Sentencing Advisory Panel. ‘Would I be prepared to address the panel on the subject’? I agreed to do so but suggested I be accompanied by Olga Heaven. This was accepted and we did so when we both expressed our views on the subject. In Olga Heaven’s case this was from her experience on the ground both in Jamaica and Africa and in mine from the personal knowledge my wife and I had obtained from visiting drug couriers in prison. We all felt that there were other ways of dealing with the problem other than imposing long terms of imprisonment on couriers from third world countries. My wife and I both believe that much more can be done if greater efforts were made to reduce the demand which if successful would affect the supply of drugs. Enormous resources are devoted by the government to the restricting the supply but hardly none at all to restricting the demand. This could be done by a campaign devoted to show that indulging in class ‘A’ drugs is not ‘cool’ and results in great hardship in the third world. We believed that there should be a publicity campaign intended to make class ‘A’ drug use socially unacceptable. Similar campaigns have been successful in the past in combating drink driving, racism, and attitudes towards homelessness of which the film ‘Cathy come home’ is a prime example. We formed a group called the ‘White Line’ with this as its intention. This group included former Court of Appeal judge Sir Robin Auld, the labour peer Lord Judd, Hanwell vicar the Rev Matthew Grayshon, Justine Schneider Professor of Mental Health at Nottingham University and Neil Ross , the writer and director of the highly successful film ‘Eve goes to Foreign’. One of our group Clara Emery comes from Colombia where she had been informed of mass graves of children who had been sucked into the cocaine industry and then murdered when they had become too addicted to cocaine to be of any use to the organisers. There was also a team in place consisting of Mark Holloway a script writer, Chris Knott a director of Passion Pictures, and Neil Ross prepared to produce a similar film to ‘Eve goes to Foreign’ drawing this and similar abuses to the attention of cocaine users in the UK. This would be in the hope that at least some of them would cease their habit when made fully aware of the consequences of it. But sadly no Government department, including the Ministry of Justice, was prepared to help with the necessary funding so that this initiative remains unutilised. However in due course the Sentencing Advisory Panel produced a press release which stated as follows:‘The Panel also considers the sentencing of drug couriers who are often very naive, vulnerable men and women from third world countries whose fates are totally disregarded by those at the top of drug supply chains. Under the current approach such couriers often serve long prison sentences while their role in criminal organisations is minor. The panel suggests that they should be treated as The Rise and Fall of Legal Aid

â&#x20AC;&#x2DC;subordinatesâ&#x20AC;&#x2122; in the supply chain. That would be likely to lead to lower sentences that those currently imposedâ&#x20AC;&#x2122; In January 2012 the Sentencing Council announced new guidelines for drug importation offenders to operate as from 27 February 2012. There was now to be a new sentencing tariff for drug couriers who were deemed to have a lesser role. This was considerably less than the previous tariff. There was also statutory provision for a number of factors reducing seriousness or reflecting personal mitigation. These included involvement due to pressure, intimidation or co-ercion falling short of duress, isolated incident, no previous or relevant convictions, the offenders vulnerability was exploited, age and/or lack of maturity, mental disorder or learning disability, ands sole or primary carer for dependent relatives. All these factors will be very familiar to lawyers representing offenders from the Caribbean. The Aramah Guidelines were no more. I recently spoke to Evadne J (Chapter 10) on the phone to Jamaica. She is now dying from cancer of the stomach, as her mother did, and in great pain. I was able to tell her that it was her case that set up the chain of events that led to the long sentences that she and many others experienced for over thirty years from 1982 to 2012 was no longer possible under the new drug offenders sentencing guideline. I told her that no one in her position today would get the lengthy sentence that she got. She appeared comforted by this information. What I did not tell her was that it had only been possible to change the law because of the legal aid scheme but that criminal legal aid was now under threat from the UK Government and the whole legal aid scheme could collapse because lawyers could no longer afford to do legal aid work.

The Rise and Fall of Legal Aid

Chapter Thirteen.

R v Laurence F The charity Hibiscus founded to support the welfare of overseas prisoners had a permanent presence in some prisons funded by the Home Office but which is now no longer available because of governments cuts. I believe that it was a result of this initiative that I was asked to see Laurence there being concern as to her guilt in the case where she had been convicted. It transpired that Laurence was a classic case of insufficient preparation resulting in a guilty verdict at her first trial. No statement was taken from her daughter or her son in law, her computer was not interrogated and no character witness was called at her trial. She had received a sentence of 12 years for importation of cocaine. Laurence was a middle aged French woman of impeccable character, a gentle, kindly, trusting and unsophisticated lady who had founded her own charity in Mali for the support of orphans in that country named Les enfants de Mali. She had been asked to bring substances from France to the UK which she had been assured was gold, which she believed, but it transpired that she had been misled and the substance was in fact cocaine. This was a case where if she was to be believed the jury had to have a deep understanding of the nature of the woman they were trying. They were helped in this by a prolonged cross examination in her second trial but the character witnesses were vital .One, now a successful civil servant, came from France and testified that Lawrence had discovered and rehabilitated him when he was a down and out drug addict and it is believed that it was this witness that opened the eyes of the jury to the real character of the lady they were trying. None of the work establishing this could possibly have been covered by five hours work, which also included the invaluable and committed help of my colleague Peter Hesom, and the fee remuneration would have positively discouraged it even then. Once I had agreed to appeal Laurenceâ&#x20AC;&#x2122;s conviction I took her instructions and then arranged for her daughter and son in law to visit me in the UK bringing her computer with them. They both confirmed that they were aware that she thought she was carrying gold but her original solicitors did not wish to follow this up. Both agreed give evidence in any retrial. They had brought her computer which I sent for interrogation and analysis by an expert. Her findings revealed that some days before Laurence commenced her journey from France to the UK she had been visiting websites about gold and making enquiries there about gold. This information was sufficient to persuade the Court of Appeal to order a new trial. At her retrial the defence called Laurence, her daughter and her husband, the expert who had examined the computer, and a number of character witnesses from France. I also had to travel personally to France and serve a subpoena on the man who had misled her as he had threatened to shoot any enquiry agent who approached him. However as expected he did not attend Court. Laurence was acquitted unanimously.

The Rise and Fall of Legal Aid

Lawrence F in Avignon

Letter from Lawrenceâ&#x20AC;&#x2122;s Daughter

Chapter Fourteen. The Rise and Fall of Legal Aid

R v Shanika Y

Shanika who came from a sheltered background in Barbados was sentenced to 9 and a half years imprisonment for importation of cocaine at the age of 18 but the prison who recommended her to me was deeply concerned about the safety of her conviction. She had been accompanied to the UK by her boyfriend who deposed both at her first unsuccessful trial and at her second successful one that she had no knowledge that she was carrying cocaine which he had included in her luggage. Shanika was fortunate in that her appeal on the grounds that the jury at her first trial was tainted because the jury included an immigration officer was successful. But at her second trial evidence of her character, including family witnesses brought from Barbados who stayed at my house, may again have been crucial in securing her acquittal. In this case once again I received invaluable help and support from my colleague Peter Hesom. After the successful appeal the retrial judge HH Judge Mckinnon expressed his view to the jury that she was clearly innocent and ordered her return to Barbados within days. After the trial I wrote to the judge during an attempt to obtain compensation for her ordeal. He replied as follows: â&#x20AC;&#x2DC;Thank you for your recent letter in which you reminded me that I presided over the recent trial of Shanika..... at Croydon Crown Court at the end of which she was acquitted. Whether Shanika should be awarded compensation is not a matter for me but for others and precisely what the criteria are I am not familiar with. However I expressed my view in open court that I did not disagree with the verdict of the Court and that is indeed the position. I do not normally express my view as to the verdict of the jury whether guilty or not guilty. However this case was an exception as it appeared to me that her conviction was a serious miscarriage of justice. The resulting time spent in custody for a girl of 18 years who was entirely innocent, and the dupe of her co-defendant who gave evidence to that effect, in total some two years eight months, must have been difficult to bear and I was hugely impressed by the numerous references as to how she had spent her time in prison constructively and selflessly, bearing her fate with dignity and fortitudeâ&#x20AC;&#x2122; Despite these words Shanika was sadly not granted compensation it being Ministry of Justice policy not to do so when there had been a full trial.

The Rise and Fall of Legal Aid

Chapter Fifteen.

The Trial of Mrs A I would not like it to be thought from the above that I was always successful and never made mistakes. Mrs A was a case where the mistake I made was quite appalling. It was alleged that she had hit her husband in the neck with a sword causing injury amounting to grievous bodily harm. I had estimated that a hospital order was likely but not one that would be an order without limit of time. When the CPS sought such an order I sought the advice of Joe Stone, (now a QC). Joe Stone was quick to point out that because of a psychiatric defence that I had completely overlooked that Mrs A should not have pleaded guilty at all. Acting on his advice the Court agreed to Mrs A changing her plea to not guilty and Mrs A was found not guilty and discharged. Even now I shudder at the fact that but for the intervention of Joe Stone Mrs A might have been in a secure hospital now completely dependent on the hospital consultants as to whether she might ever be released.

The Trial of K Tony K is a young man suffering from learning difficulties to the extent that he was found to be unfit to plead. He was accused of sexually touching a young lady also found to be suffering from learning difficulties. Had he been found fit to plead he would have had a defence of belief in consent which he could not advance as he had no right of audience. However another prosecution witness provided a statement which suggested that such a defence would have been available to Tony and the Court ordered an absolute discharge. The CPS had been invited not to proceed with the case but declined to do so. This was a case where the options open to the Court ranged from an absolute discharge to a hospital order without restriction of time. It was essential that Tony be represented and he would have been totally incapable of dealing with it on his own. As it was under legal aid the defence were able to obtain two psychiatristâ&#x20AC;&#x2122;s reports without which the underlying issues would have been unknown to the Court. If the Criminal legal aid scheme should collapse it is the mentally incapable who will be the first casualties.

The Rise and Fall of Legal Aid

Chapter Sixteen.

R v Sandra G Sandra G is another case where I failed dismally and she is the only one of those I represented in the Court of Appeal who still remains in custody. Sandra G must be the unluckiest prisoner in the system. I did not represent her on her trial but was asked to do so afterwards. She was accused of importing cocaine, denied all knowledge of carrying the drug and indicated a plea of not guilty. She was indicted together with her daughter who admitted knowledge and pleaded guilty. Her trial counsel identified a sound ground of appeal but was not prepared to take the matter further after the single judge refused her application. Accordingly I did so. At trial Sandra was supported by her daughter who while admitting her own guilt consistently, both in interview and at trial, totally denied her mother’s involvement. Sandra was only convicted after a long jury retirement, a majority verdict of 10 to 2, and the verdict only made after a jury question which was answered in a way that was at best ambiguous and at worst misleading and that was trial counsel’s proposed ground of appeal. As Sandra G was sentenced in 2011 she was sentenced under the old guidelines to 15 years imprisonment and her daughter was sentenced to ten years imprisonment because she had pleaded guilty. I took the case to the Court of Appeal pro bono adopting trial counsel’s submissions but without success. Some years later the daughter provided me with some additional material about her involvement which I considered justified a further appeal. However as there had already been one appeal there could only be second one with the support of the Criminal Cases Review Commission and the Commission were not prepared to give their backing to the appeal. A threat of a Judicial Review application of that decision was meant with the response that the decision was within the discretion of the CCRC and counsel advised that a judicial review would not succeed. As at the present time Sandra is due to be released in three and a half years’ time and her daughter in July 2015. I remain with a strong lurking doubt about Sandra’s guilt and consider that if any one deserved the chance of a second trial it was her. However the system has pronounced against her and the only way forward I can now see is to refer her case to Cardiff University Innocent project that recently had their first success in this field.

The Rise and Fall of Legal Aid

Chapter Seventeen.

Role of the Court of Appeal As a solicitor advocate I took seven cases to the Court of Appeal Criminal Division in proposed appeals against conviction all when I was in my late sixties and early seventies. One arose from a case of my own and the other six from cases where trial counsel were not prepared to do so. I was successful in three of those cases, (R v Laurence F, R v Shanika Y and a case called R v M), and unsuccessful in the remaining four which included my own case. It may be revealing that in the three cases where I was successful I briefed new counsel for the final appeal hearings and where I had retained the advocacy myself I was not successful. I have no record of how many appeals against sentence I appeared in as a solicitor advocate but I would estimate my success rate in these was about 50%.These included both my own cases and cases where trial counsel was not prepared to take them to the Full Court. Both single judges and the Full Court exercise their roles under enormous pressure. Single judges have to fit their opinions round their already busy schedules and the Full Court has long lists awaiting its attention. But the firm impression I have is that, because of this, the papers are not always read by all three members of the Full Court. The one giving the judgement clearly has done so but questions raised by the other two give rise to the suspicion that in some cases the Court is not a Full Court but effectively a One Judge Court. It seems extraordinary that far as I am aware in all its history the Court of Appeal Criminal Division has not once had a dissenting judgment, which defies common sense, but, worse, gives rise to real possibilities of miscarriages of justice. In an investigation of a major crime the police rightly use thousands of officers. It seems very unsatisfactory that where is a doubt as to whether the accused actually committed the offence the ultimate decision is made by a Court which is consistently so overworked that it cannot always give the appeal the attention it deserves.

The Rise and Fall of Legal Aid

Chapter Eighteen.

Newton hearings A Newton Hearing is a case where there is a plea of guilty and the defendant admits the offence but denies the prosecution version of events. A case in which I was involved some years ago raised questions as to the use of this procedure. Asking for a Newton Hearing involves a risk because if the client is unsuccessful he risks losing virtually all credit for his guilty plea. But on a Newton hearing the issue is decided by the judge whereas with a trial the issue is decided by the jury where the chance of being not believed is less. In my case my wife expressed this dilemma as a picture which is included in this book.

The Rise and Fall of Legal Aid

Chapter Nineteen.

The principle of Legality (Proving the Guilty Mind, A traditional approach) This is the title of an article by me referring to the case of B a minor which I commenced in Harrow Magistrates Court and I now believe to be the leading case on strict liability. B, a fifteen year old, had made an indecent proposition to a 13 year old girl on a bus in Harrow. In his own words he ‘asked her for a shiner’. At the time the offence under the Indecency with Children Act was only committed if the girl was under 14. It was accepted in the Magistrates Court by both the prosecution and the Court that B honestly believed that his victim was the same age as he was and that was his defence which I ran. The issue before the Court was whether the case required mens rea, a guilty mind. The Magistrates Court held that it did not. I was no longer involved with the case after the magistrate’s court stage but B was unsuccessful in his appeal to the High Court. However the House of Lords was unanimous that he had a defence. The House of Lords very strongly reaffirmed the magisterial statement in Sweet v Parsely that:‘There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. This means that whenever a statute is silent as to mens rea there is a presumption that in order to give effect to the will of Parliament we must ‘read in’ words appropriate to require mens rea. It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that is not necessary’ In B a minor Lord Steyn held that the ‘principle of legality’ as the rationale for the decision in Sweet v Parsely. He affirmed Lord Hoffman’s explanation of that principle in ex parte Simms as follows:‘But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary the Courts therefore presume that even the most general words were intended to the basic words of the individual’ Lord Steyn then said;‘In successive editions of his classic work Professor Sir Rupert Cross cited as the paradigm of the principle the presumption that mens rea is required in the case of statutory crimes. Statutory interpretation. Third edition page 168. Sir Rupert explained that such presumptions are of general application and are not dependent on finding an ambiguity in the text. He said ‘they not only supplement the text, they also operate at a higher level as expressions of fundamental principle governing both civic liberties and the relationships between Parliament, the executive and the Courts. They operate as constitutional principles which are not easily displaced by a statutory text’. In other

The Rise and Fall of Legal Aid

words, in the absence of express words, or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principal of legality will supplement this. In the different context of reverse burdens in R v Lambert and after considering B a minor and Sweet v Parsely Lord Clyde said:‘The advent of the Human Right Act 1998 has certainly sharpened a consciousness of the human right which is embodied in the presumption of innocence and invites closer scrutiny of what Ashworth and Black (The presumption of innocence in English Criminal Law - 1996 CLR 314) have described as a large scale derogation from basic principle .....The 1998 Act should encourage a reconsideration of a trend which has for over a decade been exposed to powerful criticism.’ And, later, ‘respect for the golden thread of the presumption of innocence deserves no less’ The article was published in the Justice of the Peace on 22 December 2001.The case itself received a ringing endorsement from the late Professor Sir John Smith CBE.QC. ‘The House hits the jackpot ... a good start to the new millennium’ and a five page commentary in Criminal Law Review for May 2000. The article is reproduced here. R v K expressly followed B a minor and was also a unanimous decision. In that case the defendant aged 26 was charged with the indecent assault of a girl aged 14. His proposed defence was that she had told him that she was 16 and he had no reason to disbelieve her. The House of Lords held that this was a defence. It is in the context of these three cases that it is suggested that the House of Lords has written its own Human Rights Act in the field of strict liability. If properly, boldly and imaginatively used the case of B a minor is potentially just as powerful weapon in that field as the statute. Save however for the decisions in R v K and R v Lambert there appears to have been little follow up to the decision in B a minor since reported. The House of Lords has actively encouraged lawyers to adopt its more principled approach to the practise of criminal law. What words can NOW be implied into existing statutes so that the courts may reconsider other Acts of Parliament that have previously been regarded as strict liability? The opportunity to do so must now be widespread. Solicitor advocates are well placed to pursue these issues. The House has provided a blue print for any case where mens rea may be an issue.

The Rise and Fall of Legal Aid

Chapter Twenty.

Imprisonment for passport offences Government policy of imprisonment for passport offences has long struck me as being misguided and indeed in many cases as inhuman. A letter from myself published in the Times newspaper on February 16 2005, which summarised my objections, is set out below. ‘The sentencing guidelines for using a false passport have recently been doubled to a period of between one year and eighteen months imprisonment, even on a guilty plea. This is the Court of Appeal’s response to the need for greater vigilance since 9/11. Last week I represented three such offenders at Isleworth Crown Court. Two were young Ukrainian women and one a man from Pakistan. All were of good character, all were seeking new and better lives for themselves and/or their families in Canada, and all, to my untrained eye, were a million miles from being a terrorist suspect. The Crown Court Judges were more merciful than I had dared to hope but, as each offender was led to the cells, I could not help but consider the futility and needless cruelty of these guidelines. If they were supposed to be a deterrent none of the three offenders, who spoke no English, could possibly have known of them. If they were terrorists, prepared to risk their lives, any increase in prison sentences would not deter them. Could not the Courts find a less unjust way to fill our prisons than this kneejerk response to the terrorist threat?’ The position was to some extent eased by the decision in R v Uxbridge Magistrates Court ex parte Adimi, which held that where the illegal entry or use of false passports could be attributed to a bona fide desire to seek asylum that conduct was covered by article 31 of the United Nations Convention relating to the status of refugees which commenced ‘the contracting states shall not impose penalties in such cases’. This decision recognised the practical reality that persons fleeing from oppressive regimes would be unlikely to have or be able to use genuine travel documents. The decision followed research by a Middlesex probation officer Liz Hales and pressure from the Joint Council for the welfare of immigrants. The immediate result of the decision was the virtual closing down of the foreign national’s wing at HM prison Wormwood Scrubs as no longer being necessary. The Government responded to the decision by the imposition of section 31 of the Immigration and Asylum Act 1999 which, while paying lip service to the Adimi decision, limited its effect by its insistence on strict time limits for making asylum claims. The comments in this letter were expanded into some articles I wrote, one of which is reprinted here from the Justice of the Peace.

The Rise and Fall of Legal Aid

Chapter Twenty One.

The CPS and Rights of Audience As it encapsulates my views on this subject I also set out below a letter from myself, published in the Times, in June 2004. ‘With concepts of fairness and independence of which any young person should be proud the Crown Prosecution Service, like the American prosecution system, should be a much prized career opportunity. However those responsible appear to be keeping the CPS in a strait jacket. Talented lawyers are restricted to trial in the magistrate’s courts or a career in management in which they may have no interest. What other country forbids it prosecution lawyers to practice in its higher courts? How can a prosecution lawyer get the feel of those courts if he is not allowed to practice in them? The answer must be to permit CPS lawyers rights of audience in the higher courts. Any concern that prosecution lawyers in a career service might become too prosecution minded could be met by means of sabbaticals at barrister’s chambers, undertaking only defence work, and the allocation of more judicial appointments to those who make the grade’. I wrote this letter because of my concern that good lawyers were leaving the CPS because of the lack of career opportunities and this would not change unless they were given a much greater chance to practise advocacy in jury trials. I wrote on the above subject published in the New Law Journal on 26 September 1997. Some progress has been made to remedy the situation but I believe the contents of that article still apply in that involvement by CPS staff as advocates in Crown Court cases is essential if that organisation is to thrive.

The Rise and Fall of Legal Aid

Chapter Twenty Two.

The new sentencing guidelines The new guidelines have imposed more onerous duties on defence solicitors. In her article “When is a courier not a mule” (Journal of Criminal Law 2012 76 JCL 444 to 445). university law lecturer Janet Loveless rightly observes that ‘it is now incumbent on defence solicitors to provide sentencing judges as full a picture as possible of background circumstances so that both role and mitigating circumstances of drug couriers can be properly assessed. It has to be recognised that many couriers do not disclose their circumstances in the earlier stages of the judicial process because of disorientation, shame, the need to protect others who were under threat or lack of trust. (Sentencing Council Research interviews at pages 4 to 6). It is therefore vital that defence solicitors are aware of these matters and find ways to address them so as to assist courts to arrive at more proportionate sentences than before’. This is quoted in full because sadly mitigation is not always being structured round the new Drug Sentencing Guidelines sometimes with disastrous results. An error in the category or role of a drug courier can result in years being added to, or reduced from, a sentence. For their part Sentencing Judges should be alert not only to place cases involving hardship to dependants lower in the sentencing range but also in cases of sufficient hardship to place them in a different category altogether as they are entitled to do. (Drug Sentencing Guideline page 7) – “In some cases having considered these factors it may be appropriate to move outside the category range”. In R v Mildred de Leon the Court of Appeal 30 January 2013 EWCA Crim 196 the Court of Appeal was prepared to accept, with the benefit of new information, that the defendant’s role should have been ‘lesser’ rather than ‘significant’ resulting in a substantial reduction of sentence. I would respectfully submit that fairness dictates that the Sentencing Court should always consider this when faced with a defendant from an overseas country without social security provision being sentenced when there is no one available to look after their children or other close dependant relative.

The Rise and Fall of Legal Aid

Chapter Twenty Three.

Sole or primary carer for dependent relatives The above wording is now incorporated as one of the statutory mitigating factors reducing seriousness or reflecting personal mitigation in a number of recent guidelines, assault, burglary , drugs and fraud, (though not sexual offences). In the light of this the overarching guideline of principles effecting seriousness (mitigating factors in the assessment of culpability and harm) issued in 2004 could now be extended by inclusion of these words so as to apply to all guidelines, and not just recent ones. Consideration of this factor must now be one of the most important features of a defence solicitor’s job when preparing mitigation for a court sentence. Failure to be able to care for dependent relatives, particularly children, hits defendants very hard, and even more so when the defendant comes from an undeveloped country where there is no social security, social services or other safety net. Of course in the majority of cases the family will be able to make provision, albeit at a reduced level, but there remains a significant majority where this does not, or cannot, happen. The defendants in such cases will not only be serving their sentences for their offences but they are sometimes punished further by having to ‘witness a death sentence’ on their nearest and dearest where they are powerless to help. Effectively such defendants are being sentenced twice for the same offence. See also R v Petherwick 2012 ‘EWCA Crim 2214 as to the application of Article 8 of the ECHR to this issue’.

The Rise and Fall of Legal Aid

Chapter Twenty Four.

R v Boakye and R v Fascina Such a recent case was R v Fascina 2012 EWCA Crim 2473 which unsuccessfully challenged the decision in R v Boakye 2012 EWCA as being fundamentally unjust. I was instructing solicitor in Boakye a consolidated appeal of six appeals which challenged the assumption that the new Sentencing Drug Guideline could not apply to those sentenced before the new guideline came into effect on 27 February 2012 but was dismissed. It is submitted that Boakye was unjust because it was not necessary for the Court of Appeal to draw a line as on the day of the new guideline which it did. It was perfectly open to the Court to make the sentencing guideline retrospective for any drug courier who was still in custody. The Court need not have considered itself bound by the precedent of Graham which could with imagination easily have been distinguished. Those who were still in custody, but could have been due for release if they had been sentenced under the new guidelines, were clearly a special case and the Court of Appeal should not have allowed itself to be enslaved by precedent. In Boakye Lord Justice Hughes raised the spectre of all the decisions since Aramah in1982 being reopened but that was neither necessary nor practical and it was not part of the defence case that he should. The genuine drug mules still in prison effected by the new guideline but sentenced before 27 February 2012 may not have exceeded two hundred according to a letter from the Ministry of Justice statistical department. They were a small but clearly identifiable group but it seems that they were sacrificed on the altar of pragmatism. That part of the decision in Boakye appears likely to have been motivated by a misguided and inaccurate ‘fear of the flood gates’ which seems to be an unworthy reason for not giving justice to some of the very poorest and most vulnerable people from the third world. It is true that to reopen their cases would have involved the courts in some extra work but it was an injustice for the length of their sentences to have been determined by an operative date which was purely a matter of chance. R v Graham could have been distinguished but it seems likely that the problem was that the Court of Appeal did not want to do so- and that was not worthy of it. The architect of Boakye, Lord Justice Hughes, was elevated to the Supreme Court shortly after the judgment but the legacy he left was a two tier system of prison for drug couriers, those that were sentenced before 27 February 2012 and those sentenced after it. The irony is that the amount of class ‘A’ drugs imported by members of the first group may in some cases be less than that imported by members of the second group yet the second group would get the benefit of the new guideline while the first group would not. In some cases members of both groups may even serve their sentences in the same prison leading to justifiable resentment. Lord Justice Hughes was also wrong in his comments concerning the guideline .In his judgement he said that the Sentencing Council’s Guideline was deliberately expressed by the Council to be prospective not retrospective. But the judgement overlooked the fact that the Sentencing Council has no power or remit to do anything other than impose future guidelines. The Sentencing Council could not have made the new drugs guideline retrospective even if it had wanted to but the Court of Appeal Criminal division could do so – if it wanted to. Although the court consisted of the three most senior judges of the Sentencing Council, with the exception of the absent Lord Justice Leveson, it was not sitting as the Sentencing Council but judicially as the Court of Appeal. I would submit that as such the Court should not be promulgating views of the Sentencing Council which, even if every member of the Council shared them, the Sentencing Council The Rise and Fall of Legal Aid

qua Council had no power to put into law. Nor should it transpose those views to the Criminal Division of the Court of Appeal when acting therein in a judicial capacity. Apart from this I would agree that the judgement in Boakye was fair and reasonable and have no quarrel with it as I have never suggested that those high up in the drug importation trade should not receive severe sentences and indeed have submitted that they should. Sometime after the decision in Boakye I was asked to represent the defendant in R Fascina 2012 EWCA Crim 2473, who I had not represented earlier. She had pleaded guilty to the importation of cocaine in Uxbridge Magistrates court on the 11 November 2011, the earliest day she could do so, and sentenced to 7 years imprisonment on 12 January 2012. Had she delayed her plea she would have been sentenced under the new guideline. But under the decision in Boakye she would not qualify to be sentenced under the new guidelines. It would appear that she had a limited role within the meaning of the new guideline and therefore if she had been sentenced under it she could have expected a sentence in the region of four years. It was accepted that the Court was bound by Boakye but it was also submitted it was open to the Court to convene a Court of five judges to depart from the decision of a court of three judges. In R v Newsom and R v Brown Lord Chief Justice Widgery said that in matters relating to the principles governing the exercising of the sentencing discretion a court of five judges should have liberty to depart from a decision of three in certain defined circumstances which applied in Ms Fascina’s case. Moreover in criminal matters it should do so. This was the solution adopted by Lord Denning in D v J (Chapter seven) when the earlier decisions were clearly wrong. The Court of Appeal in Fascina was invited to take that course. The court headed by Lord Justice Richards declined to do so giving no real reasons. Instead I was told that I had bombarded the Court with paper and had a ‘burning sense of mission’. I plead guilty to both charges. The fault for failures of presentation was clearly mine and I did have a burning sense of mission because the decision in Fascina was outrageously unfair to her. But lawyers should have a burning sense of mission and so should the Court of Appeal if it involves correcting an injustice. It is because this constitution of the Court of Appeal clearly did not that it passed up a golden opportunity to put right what by any standards was a glaring injustice. By pleading guilty at the earliest moment Ms Fascina had done everything possible that the law encouraged and indeed told her to do. At the time she made her plea she must have had a legitimate expectation that she would receive the lowest sentence open to the Court. But by doing so she was making a rod for her own back as it meant that she was sentenced before the operative date for the new guideline. In this case the Court ignored Martin Luther King’s dictum that ‘an injustice anywhere is a threat to justice everywhere’ and we forget that at our peril. Following Boakye Ms Fascina could not benefit from the shorter sentences imposed by the new guideline. But equally the decision in Boakye meant that she could not benefit from the new sole or primary provision either. This was important in her case because she was the sole or primary carer for her grandmother in Ghana, who was then 87, who had relied on her to provide her medication and pay her medical bills. She had had a stroke two and a half years earlier and had no one else to take The Rise and Fall of Legal Aid

that responsibility. Prior to her arrest Ms Fascina had been contributing 50 euros per month for her grandmother’s care. The decision in Boakye may have contributed to her grandmother’s death. Ms Fascina application for leave to appeal the original sentence decision was dismissed. The grandmother died two weeks after their lordships decision. A request to Mr Grayling for a conditional royal pardon for Ms Fascina to enable her to attend her grandmother’s funeral was also refused and she continues to languish in Cookham Wood prison. Some of the small group of up to 200 couriers who could have benefitted if the Court of Appeal in Boakye had been prepared to draw the line when the new guidelines operated as relating only to those are still in custody still remain in prison.

The Rise and Fall of Legal Aid

Chapter Twenty Five.

Early Compassionate release Such hardship could be mitigated if the Ministry of Justice was more prepared to permit early compassionate release in appropriate cases pursuant to section 248 of the Criminal Justice Act 2003. In R v K, unreported, the applicant had three children, again in Ghana, with no one willing or able to take financial responsibility for them, homeless and begging on the street. The two youngest were found to be suffering from malaria, a killer disease in Ghana, and the eldest from severe boils all over her body attributed to malnutrition. A doctor gave a risk assessment and stated that ‘all three children were at risk to severe damage to their health or death.’ Ms K had been supporting all three children, together with her grandmother who had suffered from a stroke, before her arrest. Ms K had been sentenced in 2011 so again, because of the decision in Boakye, she could not rely on the sole or primary care provision for dependants in the new guideline. However she did seek leave to appeal her sentence out of time and also made a formal application to her prison governor for early compassionate release pursuant to section 248 of the Criminal Justice Act 2003. The Court of Appeal dismissed her application for leave to appeal but did direct that the prison should consider her application for early compassionate release. The grandmother died in the interim period. Despite the intervention of the Court of Appeal it took seven weeks, and a judicial review application, before the prison responded to Ms K’s application. When it did so it supported the application for early compassionate release but the Ministry of Justice opposed it and the children were only rehoused because of the charitable intervention of a church in the UK. The children were also fortunate in that, pending their mother’s release, they were supported by none other than Mrs Attuh Benson from Chapter twelve, by now back in Ghana, who, at my request took them to Hospital and later introduced both Ms K and her children to her local church. Although the majority of such cases come from the third world the importance of the dependant relative provision is not exclusively confined to it. Local authorities are under increasing pressure to seek adoption when they have children in care. In R v F the applicant serving a sentence of nearly 9 years, found that her children’s child minding arrangements had broken down and she had no choice but to place her children in care. She was advised to seek leave out of time to appeal her sentence. The above three cases may be sufficient to show that solicitors and advocates should consider the dependant relative provisions with the greatest care when obtaining instructions. It is particularly important that this should be mentioned in interview as a failure to do so may result in subsequent mitigation to that effect being treated with scepticism on sentence. In subsequent years historians, with a world view rather than a first world view, may struggle to understand how a just and compassionate judicial and prison system, could permit Ms Kyere’ children to live, unsupported and ill, on the streets of Accra, or Ms Fascina’s grandmother to die without medical provision. In the same way we now look with amazement and horror at a sentencing culture in this country of public executions, the treadmill and the ‘cat’, only 150 years ago. But history may also regard the sole or primary dependant relative provision as a watershed in sentencing policy and as a beacon for the future. This is because for the first time the interests of dependants has received statutory recognition and is in stark contrast to previous policy, such as under the Aramah guidelines, where the reverse was the case. Despite a welcome increase in a pro victim culture this is a very helpful The Rise and Fall of Legal Aid

light at the end of the tunnel and recognition that sentencing policy should embrace everybody â&#x20AC;&#x201C; of course victims but also defendants and their dependants. This process can only be accelerated by a willingness to use the sole or primary carer provision for dependant relatives, particularly in the third world, to the full.

The Rise and Fall of Legal Aid

Chapter Twenty Six.

Local law Societies One of the privileges of being a lawyer is the opportunity to meet kindred spirits in the local law society. I was Hon Secretary of the Central and South Middlesex Law Society, (later the Middlesex Law Society), for a number of years and its President for two consecutive years in 2006 and 2007. Another advantage is that while preparing for the case of R v Attuh Benson I was able to obtain anecdotal evidence by circularising members of the Society which was very helpful because its area includes Heathrow airport. While President I was assisted by my wife Tass which included being able to utilise her superb talents in providing covers for our Local Law Society magazine, the â&#x20AC;&#x2DC;Bill of Middlesexâ&#x20AC;&#x2122;. Three of such covers are included in this book and I defy any local law society to provide a better one. I am also a member of the London Criminal Courts Solicitors Association and the Solicitors Higher Rights Association.

The Rise and Fall of Legal Aid

Chapter Twenty seven JUDICIAL REVIEWS

The Governments attack on judicial review is shameful as they are the citizen’s final defence against unfair decisions. I refer to one case which I will describe as Miss A which I cannot refer to in any detail as it is still ongoing. Miss A suffers from schizophrenia but is now under medication and has been fully cleared by her psychiatrist to work with children for which she is qualified. Some two years ago she had a relapse when she armed herself with a knife and was enroute to her mother’s house with the intention of harming her. Before she got there she came to her senses, handed herself in to a police officer and reported her intention to him. At the police station she had an ‘appropriate adult’ who did not call for a solicitor and she was offered a police caution. The appropriate adult was not fully aware of her mental history. This she accepted but whenever she is now offered a job she is refused it because of the caution. The appropriate adult should have asked for a solicitor at the police station. She subsequently saw me and I wrote to the police asking for the caution to be expunged. This was refused and the matter is now subject to judicial review. My submission, then and now, was that she should have been sectioned under the Mental Health Act. She was in fact taken in to a hospital mental health ward the following day. Or if this was not considered appropriate she should have been released. A caution was not appropriate because it would disqualify anybody who had a relapse during a mental illness from ever working with children. Miss A is now qualified but unemployed and likely to remain so unless the caution is removed. Whether this submission is accepted or not is not for me to say but there is clearly an argument to be considered and the Government’s proposal to deny that lowers the bar on a just society.

The Rise and Fall of Legal Aid

Chapter Twenty Eight.

Crown Court Advocacy - the way ahead The above cases and others in which I have been involved in, either as litigator or advocate, have persuaded me that there is a strong case for in house advocacy in the Crown Court as well as magistrates court cases now that this is legally possible since the Access to Justice Act 1999 and I wrote an article to that effect published in the Justice of the Peace. Some years later the London School of Economics wrote to me and said they were using the article as part of their university curriculum and had I any objection? I said I did not as of course I was flattered by their request. The substance of the article is set out below. The former system of advocacy by barristers only seemed to me to be flawed because control and responsibility were blurred. The solicitor, who was not at that time the trial advocate, prepared for trial but his view of the case would not necessarily be shared by the trial barrister who was sometimes left picking up the pieces. The tail was wagging the dog. It was also wasteful and inefficient and sometimes contributed to a frenzy of activity at the last moment, and occasionally to cracked trials where there is a last minute change of plea from not guilty to guilty, or the prosecution discontinues, because prosecution and defence counsel had not assessed the evidence together until the day of the hearing. It is considered preferable that the trial advocate whether barrister or solicitor advocate should decide how the case is prepared and undertake the trial in accordance with his or her own plan. Wherever possible an employed barrister within the solicitor’s firm who has prepared the case or a solicitor advocate who has done so, should be the trial advocate. There are a number of advantages to these proposals. The first is control. The second is proper distribution and use of resources at the right fee level. The third is the use of paper work being duplicated and sent off to counsel. The fourth is the direct involvement of the lay client at all stages not only by the trial advocate’s team but also where necessary by the trial advocate himself. The fifth is increased speed as the forwarding of papers to counsel is eliminated. The sixth, and most important, is economy as the roles of instructing solicitor and trial advocate are merged into one, the trial advocate. As a consequence further savings can be made as alternative pleas can be preferred and surplus witnesses shedded earlier than at the door of the court. The trial advocate must be employed in the case from the beginning, plan the strategy as to how the case should be fought and have adequate support services by way of solicitors, paralegals, secretaries and enquiry agents in order to ensure that his or her plan of action is followed. There must be a team sufficiently large to cope. The employed barrister or trial advocate should now feel confident that he can now insist on high standards of trial preparation and this surely must be the way to ensure that criminal defence work is done well. Crown Court judges at Plea and Case Management hearings should no longer hear the words ‘It’s not my case’. The opportunity to use in house Crown Court advocates is far more prevalent than used to be the case but may still have a way to go.

The Rise and Fall of Legal Aid

Because of the Crown Court listing systems, ideally within each firm there should be more than one trial advocate using the same team for his or her cases, who can interchange within the same office so that, in the event of an unexpected listing of a trial, another trial advocate can take over the case file, and can consult, not only with his fellow trial advocate within the firm but also the team supporting him. The model described here would lend itself particularly to larger organisations to include the CPS and other Government agencies and perhaps ultimately the Public Defender’s office. Barristers believe that their independence enables them to bring detachment to a case. However sometimes, (admittedly rarely), this is at the cost of a lack of real involvement or continuing interest in the case. This is much less likely to happen where the trial advocate has been in constant contact with the lay client. The shift of control in the manner suggested above would clearly result in a considerable reduction in the Independent Bar, particularly if trial advocates switched over to solicitors firms in large numbers but should not result in its demise. It is hoped that it will long remain for those of a truly independent spirit where it will continue to fulfil an essential role. There will always be a place for the true specialist and there will always be some cases, perhaps very serious ones where the barrister will already be in virtual control of the case. There may be other cases which are so straightforward that continuing control is not an essential element. In such cases the Independent Bar will continue to function side by side with the new proposals and the public will decide which system best meets its needs. The Bar will also continue to have a role in privately funded work where the client, with his own resources, may be in a stronger position to compel adequate and proper liaison between counsel and solicitor. It is hoped that becoming the head of a Crown Court Department of a busy solicitor’s firm would be a much sought of career opportunity for members of the Independent Bar and that solicitors would headhunt barristers for such a post. Much more flexibility by Crown Court listing officers in giving fixtures would certainly ease the process. Barristers would also need assuring that promotion to the Bench would not be impeded by such a move. Solicitors firms should be encouraged to merge and create departments capable of handling criminal work of high quality at all levels. Because of the avoidance of duplication between solicitor’s firms and counsel’s chambers costs savings must ultimately emerge. These savings can then be passed back to the profession in the form of increased fees. This in turn would encourage barristers to make the move into becoming Crown Court advocates within solicitor’s firms where they can control their own cases and decide how they can best be run in the interests of the client. I have been asked to make it clear that the above article should not be taken to suggest that there is no place in the future for small legal aid firms. I whole heartedly agree that there should be a future for them as I have run a small firm myself. The importance of small firms is that they often contain the mavericks that are essential to the system as sometimes being the only people prepared to challenge it. The danger of large firms is that they can become legal factories where such individuality is discouraged. The truth is that there is room for both. It is interesting that in his recent review of Criminal Justice procedure that Lord Justice Leveson puts strong emphasis on control of the proceedings by a trial advocate for both the prosecution and defence.

The Rise and Fall of Legal Aid

Chapter Twenty Eight.

Conclusion

As I am now eighty years of age, am so deaf that I cannot hear the judges, and, though I approve of it, find difficulty with modern technology I am now winding down my practice. Accordingly I have no personal interest in remuneration being either increased or decreased. But I hope that the above will be sufficient to persuade Mr Gove that the role of defence lawyer is essential to today’s society as it ever was. In the above I have set out some cases in which I have been involved together with some suggestions as to how the system might be improved. But the basic task of the legal aid solicitor is to ensure that the lay clients, many of whom have educational difficulties, have a fair hearing both at the police station and thereafter at the various courts to which he or she may be assigned. This has not changed nor should the means of financial reward which underpins it. To do so puts at risk the whole concept of a fair and just society. The requirement for solicitors to attend at police stations was instituted by the Police and Criminal Evidence Act, together with taped interviews, and was the response of the Government at the time to the scandal of a number of high profile miscarriages of justice, such as the ‘Guildford 4’ where no such provisions were in force and defendants’ rights were ignored. I think that it is right to say that the new arrangements have been an unqualified success and contributed to a compete change in police culture to those in police custody. It is interesting that there has been nothing but praise for the fair minded approach of the police in the recent TV programme called ‘24 hours in police custody’. But the presence of solicitors at police stations must assist and it would be unfortunate if the contribution of those who work at the coalface was undermined by further cuts in their remuneration. The one piece of advice I would give my successors is to keep a sense of balance between their professional and private life as I have not always done so which has prejudiced both. But again further reduction of fees will make it increasingly difficult to provide the highest standards of professional service and at the same time to maintain a healthy social lifestyle. Finally I would say that I have now been a qualified solicitor for 53 years. During that period I have undertaken legal aid work virtually exclusively save for my 6 years in the CPS and dabbling in conveyancing from time to time. Like many others I am deeply concerned that the latest cuts in criminal work are a cut too far and the criminal legal aid scheme will be close to collapse if they are implemented. If this happens the opportunities other legal aid solicitors and I have had to ensure that only those who should be in prison are sent there and, from time to time to be able to change the law for the better, will no longer be available…

The Rise and Fall of Legal Aid

The Writer and his wife Tass

About the Author The author of this book has been a qualified solicitor for 53 years and is still practising though at the age of 80 he anticipates retiring this year. Articled in local government he founded and led his own general practice for 25 years, worked for 6 years for the CPS, and thereafter has been a specialist criminal lawyer and Higher Rights advocate which included conducted jury trials and appearances in the Court of Appeal. Seema Dosaj is a partner in the firm, Vickers solicitors where the writer is a consultant. In 2007 the Legal Action Group awarded him the title of Legal Aid lawyer of the Year for outstanding achievement. This was primarily for his work carried out on behalf of the victims of domestic violence and drug couriers from the third world. He has twice been Secretary of the Middlesex Law Society and twice itâ&#x20AC;&#x2122;s President. He was a torch bearer at the Olympics. This book is a legal autobiography written primarily because of his concern at the effect of the proposed legal aid cuts on his successors carrying our criminal legal aid work and the general public where there will, without doubt, be more miscarriages of justice if there is not a rethink by the Government concerning the funding of criminal legal aid work. Mr Christopher Grayling who has proposed the legal aid cuts does not seem to understand what a criminal legal aid solicitor actually does. This book is intended to cure that deficiency with some more general observations as to how the system might be improved. It includes accounts of how the law with regard to ouster injunctions for non-married cohabitees was changed and the sentencing guidelines for some 'drug mules' modified. The Aramah guidelines had been in force for some 30 years and resulted in thousands of people from the Caribbean being imprisoned for long periods of time, many of whom where semi-literate, very poor, and misled by their dealer. This led to severe prison overcrowding. The author was the first lawyer to challenge the legality of the guidelines armed with a legal aid order. This led to the ultimate abolition by the Sentencing Guidelines Council in 2012. It also describes two cases where alleged drug mules who had been convicted and sentenced to long terms of imprisonment were assisted with their appeals and retrials under the legal aid scheme and both were subsequently acquitted. Mr Gove and Mr Grayling need to be persuaded that the role of defence lawyer is essential to today's society as it ever was. This is to ensure that the lay clients, many of whom have educational difficulties, have a fair hearing both at the police station and thereafter at the various courts to which he or she may be assigned. Only some of the cases referred to here were undertaken pro bono. The rest, including the case that ultimately led to the breaking of the Aramah guidelines, had legal aid and without it the results obtained would not have been possible. To minimise remuneration further puts the whole concept of a fair and just society at risk. This is the 'big picture' which this book seeks to address. Published as a second by Benham Publishing Limited 2015 ÂŠCopyright Alured Darlington all rights reserved. The Rise and Fall of Legal Aid