March 14

How exceptional is exceptional hardship?

Recent cases in the press have revealed one English licence holder has 62 points but is still driving legally. Since 12 points usually means an automatic 6 month (totting up) driving disqualification, how can this be? The answer is exceptional hardship arguments. Magistrates hear these arguments frequently. They are not easily impressed: hardship is a normal consequence of a disqualification and part of the incentive not to offend. In my experience, the key to success in these submissions is consideration of alternative means of transport and the impact on third parties of any ban.

Those who claim exceptional hardship need to be sure that there are no regular local transport links and no-one to help them with driving. The impact on third parties is also key: taxi drivers who lose their licence might lose their income, but this is unlikely to be sufficient. The loss of a licence which will mean an individual is unable to work which will in turn mean the loss of a home as mortgage payments cannot be met, or the failure of a business because it cannot operate are the type of things which are required to support a successful exceptional hardship argument. The impact of a ban on third parties and the inability to provide alternatives are key.

Claimants should be prepared to answer if there is mortgage insurance or savings (so payments can be made in the event of a loss of employment); whether a business can afford to pay for a driver for 6 months, or whether work colleagues could provide lifts; whether taxis could be paid; work could be done from home; or whether partners could assist and if so how (or why not). Care of third parties, whether for children or elderly relatives is a further reason why a ban would create exceptional rather than normal hardship.

It follows that hardship arguments tend to be more successful for those with families in rural areas with particular skill sets. (It should be remembered that any hardship argument should not be considered by the court if it has been relied upon in the three years before the application in question.)

Whatever claimants do they should be prepared to provide evidence in support of their assertions wherever possible. In this way, many litigants in person will be able to make such submissions and make them without the need for a lawyer. Indeed, many claimants might do well to consider that they can more credibly plead poverty when they do not have an expensive lawyer doing so on their behalf, however well the lawyers might make the submissions. (One way to deal with this conundrum is to arrange a conference or meeting with a lawyer to assist with preparation of the hearing but then make the claim itself in person).

December 2

What’s it all about?

This week the Ministry of Justice announced further cuts to Legal Aid. It has not significantly amended its original proposals to the number of duty solicitor contracts to be awarded (up from 525 to 527, meaning two thirds of criminal duty solicitor firms will be unable to continue in business).

It still intends to implement further cuts of 8.5% to solicitors’ fees. The Ministry’s original decision on these topics was judicially reviewed. (The Ministry’s approach might be illustrated by the fact that it tried to hide two of the reports it commissioned, which said that the cuts and changes make the sector unviable. The High Court found that the Ministry had acted illegally in doing so. The Ministry of Justice called this finding “a technicality”).

Recently the Ministry of Justice also announced the end of police cautions: alternative methods of case disposal are to be preferred, including attaching requirements to orders the police impose (even if they have no forensic controls).

Amongst all this news is the confirmation that the police are succumbing to the pressure they are under to reduce crime figures. Which they do by “no-criming” offences. This means crimes are not
reported and do not go through the courts.

There has also been an announcement, barely noticed, that the Offences Against the Person Act 1861 is to be reviewed. It is after all very old. It governs ABH, GBH and such offences, ones with which the public as well as lawyers are well familiar. One of the criticisms of the current Act is that too many minor offences of violence are dealt with in the (relatively expensive) Crown Court.

All of which could be read as necessary reform of the criminal legal aid sector, a government reducing crime, and positive changes to old laws.

In reality all of the above changes are about cost. Reducing representation, reducing cases going to court, and reducing cases going to the Crown court (where juries sit and where you or I might want to be tried if we were to be accused of a crime, that is according to the evidence, by our peers). Our system states there should be fairness for all before the law, however poor the background of the person or uneducated they may be. But it is no good pretending we have a Rolls Royce criminal justice system when it is in fact a clapped-out Reliant Robin. And saying again and again it is a Rolls Royce doesn’t make it so.

In 2012 the cost of our criminal justice system was in fact equal to spending in other EU countries. So say the National Audit Office. Since then there have been enormous cuts. The Ministry of Justice has already met the savings it sought to make by 2018. It is now making more cuts. It is likely that those who work in the system will find that the cuts have gone too far. Eventually the reality will hit so many people it will hit the headlines again – when too many victims have crimes “no-crimed”, too many witnesses have to attend court several times due to double and triple listing of cases in the same courts, when too many defendants have been wrongly convicted, too many criminals wrongly acquitted, or perhaps most significant of all when too many of the wealthy have a brush with the criminal courts and are acquitted (due to their highly paid legal teams) but then still have to pay the bill – because in this country even acquitted defendants have to pay their private legal fees (courtesy of the Legal Aid and Sentencing Punishment of Offenders Act 2012).

With many legal aid providers driven out of business and only a wealthy few remaining who can afford private legal fees, the criminal justice system will become increasingly unbalanced, against the poorest and the most vulnerable in society. It is said that crime only matters to people when it affects them. Witness, juror, defendant, victim and the families that know them is nonetheless a large group: it could be you. Just hope rather than expect the system to work for you when you are affected by it: Reliant Robins are not renowned for their reliability after all.

It was said of Rufus Choate, a famous American trial attorney, that he always seemed to get the best cases. Increasingly those with the most resources will find they have better outcomes at court. Hardly fairness for all. Hardly fair at all. Yet one of the first casualties for people who become involved in the criminal justice system is their detached objectivity – strangely I have yet to be asked by a client to do my job worse so it is fairer to the other side, however bad they may be. But then you get what you pay for.

May 3

Mediation: unlocking deadlock

Mediators have varied backgrounds. Some are teachers, some psychologists, some lawyers. All must undergo specialist training before accreditation, showing a particular level of knowledge as well as expertise. Yet the key to success can stem from the personal skills used both before and during mediations, albeit ones honed by professional experience in other areas.
Scepticism about mediation can focus on the polarisation of parties’ views and the apparent prospects of success. Disputes that have gone on for some time frequently become bitter, with people’s personalities seeming to provide insurmountable obstacles to resolution; perspective on a disagreement sometimes being the first casualty of involvement with outside agencies, such as solicitors and courts, local authorities and parents.
In commercial disputes the disagreements tend to have histories in happier times; SEN mediations sometimes reflecting the anger and despair of parents felt let down by the apparent level of care others provide for their child: frustration at the inability of one party to understand the other’s position is a common theme of those that come to a mediation table.
Overcoming these problems is crucial to resolving apparently intractable disputes. Perceptions of mediations can be skewed by the reluctance and even inability of the parties to see beyond their own positions and the initial stance taken by the other side. But these can be overcome by mediators using their personal and professional skills – by mediating.
So when a party explains his wife is a godparent to his ex-business partner’s child, but that he would rather die than give him any money, neither a demand for a settlement figure nor an early lunch are likely to help. In this case, I knew it was serious when even the barrister advising the individual concerned went quiet. Yet allowing the outburst meant the party felt he was being listened to, before he went on to tell his story, and lastly, led to his own acknowledgement that emotions might actually hinder the chances of ending of the bitter dispute.
Or when a head teacher has inadvertently terrified the mother of a child with special needs, explaining to him in robust terms it is time for someone else to speak can empower the parent, who, through her tears explained how she had become scared of speaking up because of minor arguments that had festered and grown out of all proportion to the real problem.
Or when the egos in a room leave space scarce enough to breathe, patiently allowing the parties present to explain their own value can allow the commercial realities to come to the fore, once pent-up emotions have been aired and, sometimes, self-importance set aside.
This all means mediators may have to stay still to avoid any (physical) fighting, stay calm to avoid any (more) crying, and stay patient whilst strong characters explain the centrality of their role (again). But it all helps trust to build, the true reasons for disputes and obstacles to agreement to be identified, and step by step resolutions emerge from what appeared intractable disputes, as they did in all of the above mediations. Or to put it another way – slowly, slowly, catchy monkey.

March 14

The difference between success and failure

CB was a hard-working and successful taxi driver, regularly working late, taking people back to their homes after their nights out. Like all taxi drivers he had to work within the terms of his private hire and/ or hackney carriage licence. (The former “minicab” licence only allows charging for pre-booked journeys, the latter also allows a driver to take passengers for reward without notice i.e. from the roadside.)

Sadly complaints were received about CB. From fellow taxi drivers and from the public. His licences were revoked by the council under the Local Government (Miscellaneous Provisions) Act 1976, his livelihood lost. The complaints were serious and the initial reaction from the council understandable; numerous allegations of racism and threats of violence coming from other drivers, and a serious complaint from a female passenger. CB hotly disputed the complaints and appealed the council’s decision.

On closer analysis the motives of the complainants became more complex, their reliability highly questionable. Other drivers had in fact made racist comments to CB, himself an Iranian national. The threats of violence were unfounded, with photographic evidence and covert recordings from CB in relation to several of the allegations undermining the prosecution case. (Against this the sight of a person in an argument taking photographs is unlikely to defuse a situation, or increase someone’s popularity). But as the council admitted, the complaints from the other taxi drivers would not have led to the licence revocation on their own.

This left the complaint from the lone female, a very serious allegation from a woman who had been on her own, late at night. She said CB had driven too fast, told her she should pay with sexual favours on her next journey when she had been a few pence short of the fare and then kept the phone she mistakenly left behind. The complainant and her father came to court. They had no apparent reason to lie. Yet the circumstances of the complaint unravelled on cross-examination: she had not been upset about the phone on the night, but had been upset about a relationship breaking up; she had stayed up late, but not reported the loss of the phone; and when she had reported the phone being lost she had made no mention of any sexual complaint. She had also left out key aspects of her account from her witness statement, with her account changing in material respects when she gave evidence. As the court concluded, she was an honest (well-meaning), but unreliable witness. They allowed the appeal.

CB was also awarded some of his costs, a rare step in licensing appeals in the absence of bad faith by the local authority. The costs decision was even judicially reviewed by them, but without success.

This was a case where an unrepresented appellant might have rejected the allegations against him, but would perhaps have failed to show the unreliability of the witnesses or present himself as a fit and proper person to hold a licence – the strength of feeling and importance of the case to his livelihood undermining the presentation of his case: in short an example of when professional representation was the difference between success and failure.

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