The newsletter of the London Criminal Courts Solicitors Association

Transcription

1 JULY 2011 NUMBER 64 LondonAdvocate The newsletter of the London Criminal Courts Solicitors Association Editorial Notices News President s Report Interview: Alison Saunders, London s Chief Crown Prosecutor Mobile Phones in Prison Can Justice Ever Be Too Open? Obituary Letters to the Advocate Training 2011 Criminal Justice Olympics

2 Editorial The sun came out, went away again and, at the time of writing, came back; but there is very little sunshine in the life of the criminal legal aid lawyer at the moment, with the Legal Services Commission presiding over late payment under the litigators graduated fee scheme, a backlog of over 4,000 legal aid applications at Havering and the Legal Aid, Sentencing and Punishment of Offenders Bill. LCCSA president Malcolm Duxbury has responded to the first two of these difficulties with a series of actions, including writing to the minister Jonathan Djanogly. I was delighted to see Paul Harris (past president) speaking on Channel 4 news about the problems at Havering, following committee members taking the fight to a wider audience via their media contacts. Here is the link for those who missed it: This issue carries an interview with London s Chief Crown Prosecutor, Alison Saunders, who touches on a wide range of topics which affect the life of those working in the courts. She is keen to have an ongoing dialogue with the LCCSA an offer which is being taken up with alacrity. As evidence of improved communications, this issue carries a list of district crown prosecutors and an item on charging and the role of the police and CPS. Our other features include cautionary advice, topical discussion and reflection. Bruce Reid is temporarily absent and his shoes are large ones to fill but I m sure readers will enjoy Jon Black s account of the Criminal Justice Olympics; this may be the closest we get to experiencing the Olympics, following the ticketing ballot. I hope you enjoy the edition, have a good summer and find some sun to cheer you up now that we have the Bill to contend with. Nicola Hill Kingsley Napley PRESIDENT Malcolm Duxbury Victor Lissack Roscoe & Coleman 70 Marylebone Lane London W1U 2PQ DX 9020 West End T E malcolmduxbury@ victorlissack.co.uk PAST PRESIDENT Paul Harris Edward Fail Bradshaw & Waterson 150 The Minories London EC3N 1LS DX Tower Hamlets T E paulh@efbw.co.uk EXECUTIVE OFFICER Greg Powell Powell Spencer & Partners 290 Kilburn High Road London NW6 2DD DX Kilburn 2 T E gregpowell@ psplaw.co.uk VICE-PRESIDENT Jim Meyer Tuckers Solicitors 39 Warren Street London W1P 5PD DX Regents Park 3 T E meyerj@ tuckerssolicitors.com JUNIOR VICE-PRESIDENT AND TRAINING OFFICER Akhtar Ahmad ABV Solicitors Union House 23 Clayton Road Hayes UB3 1AN DX Hayes (Middx) T E akhtar.ahmad@ abvsolicitors.co.uk EDITOR OF THE ADVOCATE Nicola Hill Kingsley Napley Knights Quarter 14 St John s Lane London EC1M 4AJ DX 22 London/ChanceryLane T E nhill@kingsleynapley.co.uk SECRETARY Melanie Stooks McCormacks Law Ltd 122 Mile End Road London E1 4UJ T DX Tower Hamlets E melanie.stooks@ mccormacks.co.uk TREASURER Anil Rajani IBB Solicitors Capital Court 30 Windsor Street Uxbridge UB8 1AB T DX Uxbridge E anil.rajani@ibblaw.co.uk SUB/COMMISSIONING EDITOR Gwyn Morgan Max Findlay Associates T E gwynmorgan@ maxfindlay.com ADMINISTRATOR Sandra Dawson PO Box 6314 London N1 ODL T DX Upper Islington E sandra@admin4u.org.uk TRAINING ADMINISTRATOR Hilary Riddle PO Box London N2 9UW DX East Finchley T M LCCSA WEBSITE 2 JULY 2011

3 Notices ACCREDITATION The LCCSA and the School of Law at Swansea University are collaborating to provide association members with accreditation as court duty solicitors and police station representatives. Fees will be reduced by 20% for LCCSA members. There will be monthly assessments in London at Charter Chambers. These will cover critical incidents tests, interviewing and advocacy assessments and written examinations. The dates for assessment in London for the next four months are 22 and 23 August, 5 and 6 September, 10 and 11 October, and 7 and 8 November. COMMITTEE MEETINGS These meetings are held monthly, on Monday evenings. The next three meetings are on 12 September, 10 October and 14 November. The venue is the offices of Kingsley Napley and meetings start at 6.30pm. All members are welcome to attend. EUROPEAN CONFERENCE This will take place in Amsterdam on 7, 8 and 9 October. The principal speaker will be Neil Hawes QC. News The annual dinner The LCCSA's 62nd annual dinner was held at the Sheraton Park Lane hotel on 1 July. President Malcolm Duxbury told a packed dining room of his pride in the dedication and humour of members, working at the coalface of the criminal justice system in difficult times. Jeremy Carter-Manning QC spoke affectionately of his long association with Malcolm and reminisced amusingly about the days when figures such as Judge Mad Jack Ellison presided over the courts. Letter to minister LCCSA president, Malcolm Duxbury, has written to Jonathan Djanogly MP, setting out some of the association s current concerns. Firstly, he describes the massive delay in processing legal aid applications at the centre in Havering and explains the effect of this on work in the magistrates courts. Secondly, he mentions the extensive delay in receiving fees under the graduated litigator fee scheme and points out the resulting difficulties for practitioners. Lastly, he queries the minister s recent decision to discuss future legal aid provision, not with representatives of the LCCSA, but with some other organisations and with particular supplier firms. Channel 4 News Channel 4 News took note of the LCCSA s expression of concern about the delay in processing legal aid applications and invited past president, Paul Harris, to JULY 2011 appear on the programme, where he gave a cogent account of how the delays are causing a crisis in the work of the courts. New CPS structure London CPS has recently undergone structural changes. From 4 April, the CPS structure in the London area began the process of becoming more aligned with the command structure of the Metropolitan Police. Each of six CPS districts will be led by a district crown prosecutor, who will work closely with their counterpart in the police (area commander). By 30 June, a number of borough teams will have been merged into larger teams. In some merged boroughs, teams will work from two locations one dealing with Crown Court and the other dealing with magistrates court work. It is hoped that, in the short to medium term, teams are all located in the same office. The new districts, with contact details, can be found on the CPS London website: or by ing cpsl@cps.gsi.gov.uk The new CPS districts and district crown prosecutors (DCPs) are as follows: Inner London & Woolwich (Lambeth, Southwark, Greenwich & Bexley, and Lewisham & Bromley) DCP: Sarah Maclaren; Croydon and Kingston (Wandsworth & Merton, Richmond & Kingston, and Croydon & Sutton) DCP: Andrew Glover; Harrow and Isleworth (Brent & Harrow, Hounslow & Hillingdon, Hammersmith & Kensington, and Ealing) DCP: Kris Venkatasami; Southwark (Westminster, City of London & 3

4 Economic Crime, and the proceeds of crime unit; British Transport Police) DCP: Lisa Brown; Blackfriars and Wood Green (Enfield & Haringey, Barnet, Camden & Islington, and Hackney) DCP: Denise Hanks; Snaresbrook (Havering, Newham, Redbridge, Tower Hamlets and Waltham Forest) DCP: Lionel Idan. Charging in London In London, the CPS, Metropolitan Police, City of London police and British Transport Police all have charging powers and make decisions based on DPP guidance. Under the fourth edition of the Director s Guidance on Charging, which took effect in June, the police can now charge more offences without referral to a duty prosecutor. The guidance says, subject to some exceptions, that the police may charge any summary-only offence (including criminal damage where the value of the loss or damage is less than 5,000), irrespective of plea, and any eitherway offence anticipated as a guilty plea and suitable for sentencing in a magistrates court. Prosecutors will make charging decisions in all indictable-only cases, any eitherway offence not suitable for sentence in a magistrates court or anticipated as a not guilty plea, all hate crime, and offences requiring the consent of law officers, as well as summary-only matters involving an allegation of terrorism. In a case where offences under consideration for charging by the police include an offence which must be referred to a prosecutor, all offences in that case should be referred to the prosecutor for a charging decision. Charging advice from the CPS is available to the police 24 hours a day, seven days each week. The majority of charging decisions made by the CPS during office hours are made by CPS London Direct (CPSLD) duty prosecutors. CPS Direct provide national out-ofhours advice to the police, including on bank holidays and at weekends. In more complex cases (homicide, rape, large-scale fraud or organised crime), charging decisions are taken by CPS London s complex casework unit. CPSLD was set up to deal with volume crime. Cases that are likely to take more than 60 minutes to consider, involve an element of complexity, have to do with child abuse, contain CCTV footage, involve ABE ( achieving best evidence ) interviews or are voluminous, are likely to be referred to the local borough for a face to face appointment. Defence representations are welcomed in appropriate cases: For police charging decisions, contact the custody sergeant at the relevant police station or location, who will refer to the appropriate evidential review officer. For all CPSLD decisions, contact Dolores Barrett, CPSLD legal manager: Dolores.barrett@cps.gsi.gov.uk; For charging decisions being made by CPS London s complex casework unit (CCU), representations should be addressed to the lawyer who is providing charging advice (if known) or, if not known: Gary.Dolby@cps.gsi.gov.uk for homicide; Louise.Smith@cps.gsi.gov.uk for Rasso; Damaris.Lakin@cps.gsi.gov.uk and Wendy.Barrett@cps.gsi.gov.uk for serious casework. The CCU can be contacted on Pre-charge representations to CPSD should be through the officer, who will contact CPSD. If the charge is being dealt with by a CPS borough team, the relevant contact details are on our website at Representations should be directed to the appropriate borough crown prosecutor (BCP). Representations to CPS London Direct must be made before the suspect has been charged with any offence, while any post-charge offence should be referred to the borough BCP. Pre-charge representations should be in writing and include supporting documentation, preferably by . Sentencing sub-committee The sentencing sub-committee of the LCCSA continues to be busy, responding to the many consultation documents which have recently been published. These have included the Home Office s More Effective Responses to Anti-social Behaviour, which contains the government s proposal to abolish ASBOs and to replace them with criminal behaviour orders. A response has also been submitted to the Sentencing Council s consultation document on sentencing for drugs offences part of the Council s overhaul of the sentencing guidelines. The current topic for the Council is burglary offences: anyone wishing to help with the Association s response on this should please contact a member of the LCCSA committee. Isleworth court user group Isleworth user group was told, at its last meeting, that anything affecting trial readiness should be notified to the list office as soon as possible, so that unnecessary mentions can be avoided. The court should be given advance notice where vulnerable defendants are involved. Isleworth list office should be notified if contact with the defendant or any witnesses has been lost. Where an interpreter is required for a defendant, the onus to notify the court is on the defence. 4 JULY 2011

5 President s Report With the publication of the Legal Aid, Sentencing and Punishment of Offenders bill, it is clear that, despite representations made by many including the LCCSA the original recommendations of the green paper on legal aid for criminal cases will (bar a few minor tweaks) come into effect. Why do they bother to consult us? In addition, two very serious concerns are quite rightly dominant for members: the Legal Services Commission s late payment of substantial claims under the litigators graduated fee scheme and the centralised processing of legal aid applications at Havering magistrates court. On behalf of the Association, I have written to the under-secretary of state at the Ministry of Justice, Jonathan Djanogly, to express members anxieties and to set out the effect of these delays on our work and the work of the courts. Earlier, I wrote to the LSC s chief executive about the late payment of fees. I now understand that the hardship provision has been altered, as a short term measure, reducing the required level from 10,000 to 5,000. I hope members can take advantage of this. As for Havering magistrates court, representatives of the Association have held a meeting with Her Majesty s Courts Service to express our concern about delays (and their inevitable knock-on effects) in the processing of applications for representation orders. It was emphasised that, at the meeting when the idea of centralisation at Havering was first raised, we were told that one of the advantages of the new system would be a reduction in delay. HMCS informed us that there had been IT issues at the centre but that temporary staff have now been employed in an attempt to resolve the problems. The centre will now prioritise applications on the basis of the next date of hearing in the case. Members should, by now, have received an outlining what solicitors can do to assist the Havering office. This is by no means an ideal situation. Members may feel, as was indicated at the meeting, that there may have been an inadequate business plan when the centre was first set up. One wonders what would happen if we ran our own businesses to the same standard not just from the financial point of view but in terms of our professional obligations and the view that our professional body would take. A further meeting is planned. Members may be sure that the Association is monitoring the situation. A number of meetings have been held in various courts about the creation of new local justice areas. The Association has already had a meeting with HMCS with regard to this and has ensured that there are representatives in the new areas to look after members interests and to deal with any issues that may arise. The Association has also responded to a number of consultation exercises, including one on sentencing. I am very grateful to all those members who take the time to assist in this process. It takes a lot of hard work but it is very important, as it allows the Association to put forward its ideas in a clear and constructive manner. I am acutely aware of the difficulties faced by practitioners, and the fact that we must deal with the inefficiency of various bodies and other people. We must not allow our frustration to prevent us from doing our job which we all do extremely well. As always, members should feel free to contact me about any concerns. Malcolm Duxbury Victor Lissack Roscoe and Coleman Interview with Alison Saunders Alison Saunders is Chief Crown Prosecutor for London. She spoke to LCCSA committee member, Steven Bird. Q: Have you worked at the CPS throughout your career? A: I became a barrister, did pupillage and worked for Lloyd s, as a legal advisor to underwriters, for about 18 months and then joined the CPS in 1986, when it was formed. I ve worked as a lawyer, in our policy directorate in headquarters, in the Attorney General s office, in the Inspectorate, as Chief Crown Prosecutor for Sussex and as head of the CPS organised crime division. As Chief Crown Prosecutor for London, I m responsible for all prosecutions in London, apart from terrorism or anything which goes to headquarters. Q: In response to criticisms of London CPS in last year s Inspectorate report, you set out a range of measures more staff in court, improved case progression etc. Is this compatible with the requirement that you spend 25% less over the next four years? A: Surprisingly, it is. It s challenging. But what the Inspectorate said was not that we needed more people: JULY

6 it s around more prosecutors and making sure we ve got the right people in the right places. The Inspector said we were spreading ourselves quite thinly: we had developed integrated prosecution teams and the aim was to do this across 32 boroughs. But we have just implemented an area restructure which cuts down the number of units so we get greater economies of scale. We re also looking at moving people so they are all in the same place. This will help both with the cost-cutting and meeting the Inspectorate recommendations. We have also implemented a Crown Court optimum business model which is almost industrialising those processes we need to do, making sure we ve got a proportionate response to the case. For volume cases, it s around someone sitting there churning through the correspondence, making sure we ve got the evidence, making sure we re putting the papers together. That s done on our pod so there s no individual file ownership. On a shoplifting, it doesn t matter whether it s your case or not, you re still the prosecutor and you can take decisions. On the more serious cases, there will always be a prosecutor assigned. It s about using our resources effectively and proportionately. Q: Do you think the pod system is working? A: I think it works where we manage it properly and I think it s fair to say that we are not consistent across the area. You do have to put the resources in. What it needs is a lawyer and a case worker sitting on there each day, preferably for a month at a time, knowing what they re doing and working their way through everything. And file management has to be unimpeachable. That s what we re about now, making sure we get things right first time because we can t afford to spend a lot of time taking remedial action, chasing things up with the police. Q: One of the biggest criticisms of the CPS revolves around the pod system because it is extremely frustrating not to have anyone owning cases. A: This is a criticism I ve heard from defence and, to a certain extent, from prosecutors themselves and so we re looking again at how we operate the pods. Some boroughs were having a different lawyer on the pod each day. It doesn t work like that. Lawyers are staying on there for a month at a time. But my bottom line is: this is a CPS case; we all work for the CPS; it shouldn t matter whether it s your case, as long as we all do it properly. One of the things I ve asked should be published in the Advocate is a list of district crown prosecutors, so defence lawyers can escalate up anything that is not being dealt with properly. Q: Can you explain the changes which have taken place with regard to charging? A: We now have centralised charging across London. It is done via CPS London Direct. They do all charging apart from a small category of cases which need faceto-face advice, for example, child abuse or rape cases. Again, I ve asked an item about charging to go into the Advocate, in which we explain what the police do, what we do and give some contact details because we would encourage early engagement and recognise we have to facilitate that. CPS London Direct means we can get consistency across London and also develop some expertise because the lawyers are there for three months, minimum, just doing charging. We can train around what the right charges are, what they should be looking for, how they should be challenging the evidence, but also around action plans, making sure everything is there for the officers who pick it up at court. Q: Once a decision is made by CPS London Direct, is it set in stone? A: Absolutely not. We have a continuing duty of review. Certainly, we would encourage any defence representative who has representations to contact us early. Q: I understand the CPS is keen on the use of secure . We have heard there are plans to serve case papers in this way. A: At the CPS, we have an aspiration to work electronically by We have a huge amount of paper being moved between courts and between offices and it s much easier if people can access it electronically. Also, it saves money archiving and generally makes things a lot easier. And we have our case management system which everything will drop into. For the defence community, it works if you can use secure because you ve got a record that, for example, a letter has got to us. We will be looking, later on this year, to start piloting, in a gently phased way, in certain boroughs, serving advance information electronically, seeing how that works and then moving up to serving committal papers electronically and then possibly moving on. So we re talking to the defence community, the police, the courts and other partners. Q: Who are you talking to in the defence community? A: I recently sent out a letter to all defence firms that we have records of in London Q: Really.? A: saying, do you have secure ? If so, can you tell us what your secure address is? And we also had an event, with firms from London. I think this was 6 JULY 2011

7 organised by the Law Society. I have a date in my diary to talk to Malcolm (Duxbury, LCCSA president) about where we re doing it and what we re looking at. When I came into the job last year, I made it a priority to have an ongoing dialogue with the LCCSA on various issues. Q: Clients will not so often be able to use electronic means. Can we pay the CPS for paper documents? What happens if papers are served electronically at court for first appearance? Or if your client is in prison and you can t take your laptop in? A: Our aim is to be paperless but we recognise that we may be going faster than everyone else and so we have to work with you to see how we can achieve this aim and what the implications are for everyone. This is not going to happen tomorrow. This is next year and moving forward. Q: Can you tell me about your advocates panel? A: We have a list at the moment and we re refreshing that. We re looking at having advocates graded 1,2,3 and 4 to do the most senior cases and one entry level. The panels are open to barristers and solicitor advocates. It s around making sure that we have good quality advocates, smaller in number than at present, so that we can maintain quality and build up a good relationship with those advocates. We re currently awaiting the closing date for applications. There will be a period for assessing them and then there will be appeals. The new panel should be operational from September. Q: Is there any sort of quality assurance for inhouse advocates? A: Our in-house advocates are assessed each year. We have both internal and external assessors. Even if they ve come from the bar or they ve done the HCA qualifications as a solicitor, they have to go through our training and tests to decide whether they are fit to do jury or non-jury matters. Q: There is a feeling among the defence community that prosecutors in the magistrates courts aren t as good as they could be. A: We ve had that feedback from magistrates as well. Advocates in the magistrates courts don t have to go through that sort of test. But they are going to be subject to assessments and we re going to be doing that more because some of the feedback we get is that our associate prosecutors are very good but sometimes it s our lawyers who are perhaps not so good. We ve just completed our business plan for next year and that is going to be a feature, doing some training around it, going out and assessing people and giving them feedback. Q: What about non-qualified advocates? Are there plans to increase their use? A: We aren t seeking to recruit any more non-lawyer advocates. We ve increased our usage of them so that our associate prosecutors are doing more. We work very hard with HMCS to make sure they have a full list. Q: What are your views on virtual courts? A: I think we will see more of them. Performance has been driven up over the last six months or so. You get quite significant savings around transporting prisoners, if they re used for the right cases. The issue we haven t quite worked round for the defence community is: do you go to the police station, in which case you get stuck doing that one case and you can t talk to the prosecutor, or do you go to court, where there will be a delay for duty solicitors talking to their clients? Q: If you were a defence lawyer, where would you choose to be? A: It s a very difficult decision. I m not a defence lawyer and so I don t have to make it! But I think we should look at it as a package around how we get greater efficiency across the criminal justice system, how we make new local justice areas work, how we save time and resources across the system. Q: Have you regretted not working in private practice? A: My husband is a barrister in private practice and one in the family is enough! Q: What is the prosecution you re most proud of? A: The one that stays with me is of two individuals who were termed the railway rapists. We prosecuted them for 17 rapes and 3 murders. One of the pair was already in prison and decided to implicate his co-defendant. We had an old-style committal in Brent. It was quite chilling: you could have heard a pin drop in the court as he gave his evidence. And I was very pleased more recently about the decision in the Stephen Lawrence case. Q: What do you do when you re not working? A: Do I ever not work? I have two children, who keep me occupied quite a lot. I love cooking; and I quite like to escape to the Kent coast to blow the cobwebs away. JULY

8 Mobile Phones in Prison In late April, a criminal defence solicitor pleaded guilty at a London court to making calls to a client in custody who was on a mobile phone. He was fined 3,000. He may be the first solicitor to be caught by the changes to the Prison Act 1952 but, given the recent establishment of a specialist anti-prison corruption unit at New Scotland Yard, he may not be the last. The problem of prisoners using illicit mobile telephones to call solicitors from prison is an increasing one and it is likely that many firms will have been called in this way without necessarily knowing it. Each firm should have a clear policy in place when such calls are identified and under no circumstances should anyone from the firm make a call back to the number knowing it to be a prisoner. The offence Section 40D of the Prison Act 1952, as inserted by the Offender Management Act 2007 section 23, provides that a person who, without authorisation, transmits or causes to be transmitted any image or any sound from inside a prison by electronic communications for simultaneous reception outside the prison is guilty of an offence. It is an either-way offence and the maximum penalty on indictment is two years imprisonment. Solicitors, being in a position of trust, may be vulnerable to harsher penalties than ordinary members of the public although, in the recent case, the experienced district judge felt that a financial penalty was sufficient punishment. However, solicitors should also be aware that the Standard Crime Contract 2010 provides at that the firm must report to the Legal Services Commission if a solicitor is charged with or convicted of an imprisonable offence. The Solicitors Regulation Authority will also require a report if a solicitor is charged with or convicted of an indictable offence. The SRA has confirmed that indictable includes either-way offences whether tried summarily or in the Crown Court. Inside or outside prison? In short, the Act catches the sending of images and the making (and possibly receiving) of telephone calls on mobile phones. On first reading, it may seem that the offence is committed by the person inside prison. But it is my view that it covers the making of a call from outside a prison to a prisoner who is on a mobile phone as long as the call is answered by the prisoner and he speaks to the person making the call. There are no previous cases reported concerning an outside caller charged with this offence. But, applying the basic rules of statutory interpretation and giving the provision a plain and straightforward meaning, the words of the statute can clearly be construed to include an outside caller making intentional and successful calls to the client, who is using a mobile phone. The outside caller has intentionally caused to be transmitted the prisoner s voice over the relevant telecommunications network for simultaneous reception outside the prison. Even if this interpretation is wrong and the offence under section 40D(1)(b) can only be committed by someone who is physically in the prison, that restriction would not apply to a secondary offender (ie someone procuring an offence). In such a case, it is the location of the principal offender (ie the prisoner) that matters. Section 8 of the Accessories and Abettors Act 1861 provides that whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender. Section 44 of the Magistrates Courts Act 1980 contains similar provisions for either-way or summary only offences. Best practice The SRA has had a number of enquiries from solicitors about whether they were able to make calls to prisoners in this way. The original response was that it would be encouraging the client to commit a breach of prison rules but the SRA now accepts that the advice needs to go further. The SRA is, I understand, considering issuing guidance on the point, as indeed is the Law Society. The solicitor receiving a call from a prisoner on a mobile phone is under an obligation to act to terminate the call as soon as they realise that the call is from a mobile and the person is in prison. They should inform the caller that they are committing an offence and that they will not accept calls in such circumstances. Continued calls from a mobile might lead to the termination of the retainer, as the client is putting the solicitor into a position where they may be complicit in the commission of a criminal offence. Under no circumstances should a solicitor ever call an imprisoned client who is on a mobile telephone. Each firm should adopt a policy along these lines so that all staff are aware of the potential problems. 8 JULY 2011

9 It would be deeply embarrassing to find your own mobile number featuring in the evidential call data analysis of an illicitly held mobile phone. A knock on the door may follow. I do not accept that the solicitor is under any obligation to report the client to the authorities for using a mobile phone but strong advice ought to be given. Risky climate I accept that others may not agree with my interpretation of the offence and, indeed, the section is particularly clumsily worded. Changes are being made by the Crime and Security Act 2010 (yet to be brought into force) but these seem only to extend the offence to text messages. It may well be that the changes to the Act were not meant to capture this sort of activity primarily (see Prison Service Order 1100) but such acts seem to be caught by the statute. It may also be that the Act is meant to prevent those inside prison committing offences. The recent case was not the forum for that argument. It is an argument that I would not be confident of winning. Steven Bird Birds Solicitors Can Justice Ever Be Too Open? With the recent media furore over so-called super injunctions and reported concerns over the oppression of freedom of expression, it is easy to forget the UK courts commitment to the concept of open justice. In the somewhat defiant report by the committee on super injunctions in civil proceedings, released in May, Lord Neuberger MR reiterates the dedication of the judiciary to this fundamental constitutional principle. The criminal courts are equally committed to open justice if not more so. Even in the most sensitive and secret of cases, reporting restrictions or the granting of anonymity orders are heavily scrutinised and only applied when strictly necessary. A recent example can be seen in the case of Times Newspapers Ltd and another, 2008, where the defendants were six soldiers who had been charged with conspiracy to defraud. Due to the nature of the defendants work and the sensitivities this entailed, the entire proceedings were heard in camera. The Times appealed against this decision. Applying previous decisions, the Court of Appeal reiterated the principle that, in the absence of express statutory provision, a court cannot sit in private merely because it believes that to sit in public would be prejudicial to national security. It is only if the factor of national safety appears to endanger the true administration of justice (for example by deterring the Crown from prosecuting in cases where it should do so) that a court may sit in private. Justice seen to be done The rationale behind the courts fierce protection of open justice is the maxim that justice should not only be done but be seen to be done. This has been restated recently by Lord Judge CJ in his speech in the case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, 2010, when he emphasised that the public s ability to scrutinise the judicial process is of fundamental importance, particularly in proceedings brought by the state. He explains that scrutiny is often undertaken by the media acting on behalf of the body of citizens and, in this context, it is more than just an aspect of free speech: it represents an element of democratic accountability and is a vigorous manifestation of the principle of freedom of expression. Ultimately, he said, it supports the rule of law itself. With this ringing endorsement of the virtues of freedom of the press to report on court proceedings, except in strictly prescribed circumstances, it is difficult to see a legitimate argument which supports complaints from certain quarters that the courts are biased against freedom of expression. However, with the media clamour for changes in the law and the government seriously considering reforms, there is a risk that well reasoned and sound judgments, developed over years of jurisprudence, may be ignored in favour of arguments over whether it is in the public interest to know if footballers are cheating on their wives. Any serious debate must take into account the views of senior judges, as laid out in the case law, as to why, in certain circumstances, it is necessary to diverge from the fundamental principle of open justice. If new laws restrict the ability of the courts to manage the reporting of cases, to the extent that the effective administration of justice is affected, there is a real risk that our justice system could become too open. Impoverished debate The government has previous for ignoring the broader issues when dealing with debates relating to the restrictions on reporting and anonymity. In JULY

10 2010, the Coalition s Programme for Government said We will extend anonymity in rape cases to defendants. There followed a charged debate which focused primarily on rape-specific arguments against defendant anonymity, including the low conviction rate, the need to encourage the reporting of rape and the potential restrictions on rape allegations. The broader issues, such as why the criminal justice system might look to adopt these measures, including the protection of human rights, were somewhat glazed over and the policy was dropped in favour of negotiations with the Press Complaints Commission to persuade newspapers and websites to allow rape suspects to remain anonymous. One only has to look at the prejudicial reporting of Chris Jefferies, the landlord in the Joanna Yeates murder case, to see that, in high profile cases, the threat of a reprimand by the Press Complaints Commission is not a sufficient deterrent. Those of us who represent clients facing rape charges and other sexual assaults are familiar with the disproportionate stigma that can be attached to these allegations, the risk of trial by media and the inequality of arms between defendants and complainants who invariably are granted anonymity. This is a legitimate and important topic to discuss with reference to open justice but it seems it will be some time until the debate is reignited particularly in the light of Kenneth Clarke s recent foray into this sensitive area. Unfortunately it seems that, when dealing with topical legal issues where the media has a strong view, or even a vested interest, a constructive debate with reference to the years of carefully considered case law is beyond us. This is regrettable, particularly when a review of the case law shows that open justice is at the forefront of judges minds and will only be sacrificed when strictly necessary. It is, of course, Parliament, not the courts, who enacted the Human Rights Act, which includes the sometimes competing rights of privacy, fair trial and freedom of expression, and so the criticism levelled at the courts, that freedom of expression is being eroded by their judgments, is somewhat disingenuous. In criminal proceedings, when someone s liberty is on the line, the judge s ability to consider competing rights and to order restrictions on reporting or to grant anonymity where absolutely necessary to ensure the effective administration of justice is vital. Is interference with this right a risk worth taking? David Sleight Kingsley Napley Obituary Jonathan Shapland, solicitor, born 9 July 1957, died 14 May 2011 I first met Jonathan Shapland in the summer of 1986 when I was an undergraduate on a work placement at Clifford Watts Compton. Jonathan, an assistant at the firm, introduced me to the joys of being a criminal defence practitioner, principally by example. I was hooked. Later, when he had his own firm, he was both brave and kind enough to take me on as his trainee solicitor. No one could have asked for a better training. Jonathan would always go the extra mile for clients: achieving equality of arms was, for him, paramount. Regardless of the nature of the allegations faced or the sometimes less than appealing personal characteristics clients possessed, he always ensured that all received the same high level of care and the best chance possible before the courts. His professionalism, dogged determination and generosity of time both for clients and his staff were phenomenal. In the 80s and 90s, when the London courts still had long lists, he was able to cover two or three in a morning, travelling by bike. At court, he was quick to praise adversarial excellence in others and always willing to help young and inexperienced lawyers. His generosity of spirit, integrity and exceptional diligence marked him out as a first rate practitioner, achieving excellent results and securing him a solid almost devoted client base. His approach earned him the respect and confidence of fellow solicitors, barristers and district judges alike. While numerous acquittals and well mitigated sentences may be his professional legacy, I am sure that he would have regarded his sons as his most significant one. His love for them and his pride at being their father was undoubtedly most important to him. He never ceased talking about the boys, saying how well they have both done. He was rightly proud of them as they can be of him. His early loss will be felt by many. He is survived by his wife Charlotte, his sons Richard and Henry and his parents, Peggy and Sydney. Denise Bradshaw 10 JULY 2011

11 Letters to the Advocate Advocate If any reader member, associate member or anyone else would like to express a view on current events in the profession or the courts, please send an to the editor or assistant editor. Letters may be edited. Ricin! book review Bad reviews are an occupational hazard for any writers and we make no objection to that. However, Daniel Kersh s review of our book (Advocate issue 63) cannot go unchallenged. Mr Kersh writes there is no evidence for our unsupported claim that US Secretary of State Colin Powell relied on the ricin case to bolster the argument for the Iraq war, when it is well documented that Powell did precisely that in his speech to the UN Security Council on 5 February 2003 (which we quote extensively on pp ). He also claims that all four of the acquitted defendants were linked to the poison recipes found in the Wood Green raid which again is quite wrong. The prosecution made no such claim and there was nothing at all to link Mouloud Sihali and Sidali Feddag to the recipes (or to the other acquitted defendants; the first time the four of them met was in the dock). There are other inaccuracies: he suggests that Fiona s contribution to the writing of the book was restricted to one chapter. The entire book was jointly written. Mr Kersh also says our description of the plight of Algerian refugees in the UK gives the impression of being culled exclusively from closing defence speeches. This chapter was based on original interviews with asylum-seekers as the references cited in the book would indicate. Mr Kersh also appears critical of the fact the jury weren t given highly prejudicial information about Kamel Bourgass s earlier conviction for murdering a police officer which seems a surprising sentiment coming from a defence lawyer. There has been so much disinformation promulgated about the supposed ricin plot (which was the main reason for writing the book in the first place) and it is unfortunate that the London Advocate has now added to that. Fiona Bawdon and Lawrence Archer Iwas one of the lawyers involved in defending one of the accused. Mr Kersh has suggested that we had actively sought to have certain secret evidence excluded as it may have tended to show our client s guilt. That in fact was never the case. We had applied for such evidence to be admitted during the course of the trial as, if anything, it showed our client s innocence. This application was opposed by the Crown. Unfortunately, the judge found in favour of the Crown and we were not able to refer to such evidence. Happily, this did not ultimately affect the final outcome, which was the acquittal of our client. Julian Hayes Hayes Law Training 2011 Date Title Course tutors 22 September Criminal Law Update Andrew Keogh 29 September Criminal Law Update Andrew Keogh 20 October Effective Trial Preparation Karen and Cross-Examination Hammond 27 October Your First Days in Court HHJ Stephen Dawson and Malcolm Duxbury All four training sessions are being held at Hodge Jones & Allen LLP, 180 North Gower Street, London NW1 2NB JULY

12 Criminal Justice Olympics With 12 months until the opening ceremony, discussions are underway as to how to process the expected influx of visitors through the criminal justice system. There has already been talk of special Olympic courts. Whilst we were reminded last month by the regular author of this column that the criminal trial is not a game, it is certainly becoming a sport. Outside court, the Olympians jostle for position on the starting blocks for the streamline sprint. Each contestant has to collect advance information, read it, pick up a client (their own), complete legal aid, advise, plea and mitigate or complete a case management form, find a probation officer to prepare an instant report and advise on appeal before 5pm. Applications to adjourn are penalised as a false start. Two applications result in disqualification. Meanwhile, in court two, the coxless pairs are co-defending a hopeless ticket-touting trial. The defence is that they bought 500 tickets in the expectation of getting only 10 and didn t know what to do with the remainder. The Deputy Olympic Judge reminds Sebastian Co-defendant that his client is currently without a paddle. In court three, sits an OJ (Olympic Judge), who is marking contestants in the QAA events. He marks down a south London competitor for using you know in his mitigation. Then the next contestant ruins his flawless routine, reducing his marks to 8, on account of a slip at the finale when he omitted unless I can assist further. In court 4, a track-suited OJ Philips is hugging hooded athletes who have failed to attend the drug interventions programme, having been offered an opportunity to continue competing if they keep all appointments and demonstrate that they are steroid free. The medal table is being hotly contested by two consortia: KTABVIBBPSP (the western consortium) v HJALNBSBITN (northern consortium), who are bidding for the greatest number of prizes. Outside court, there are police station events, for which there is a specific Olympic rota. KTABVIBBPSP have entered the most candidates. The triathlon consists of, firstly, the streamline sprint and, secondly, the call centre contest, in which teams must take the most calls from the call centre without losing patience with the operator. (Competitors who forget a reference number will find that their call does not count.) The third element requires contestants to make a frenetic dash, during which they must conduct as many police station interviews as possible within an allotted time. Meanwhile in the cells, young competitors are taking instructions for the high jump. A pupil is being told to lend the defendant her mobile phone to call the complainant, while a solicitor is listening to a long-term client, who is threatening to sack him unless he mentions the wife (18 years deceased) in mitigation. The criminal trial is not a game; but nevertheless it seems that we are all in training to be CJTs Criminal Justice tri-athletes. We may even have to become pentathletes, if, ultimately, we are all expected to participate in every event. Jonathan Black BSB Solicitors This newsletter is free to all members and associate members of the LCCSA. Anyone who wishes to make a contribution should please contact the editor. 12 JULY 2011