February 7

When things are not as simple as they seem

JB had been in trouble many times over many years. He was well-known to the courts and the local police. Addicted to drugs and accused of robbery, he was facing 7 years in prison.

His prospects seemed bleak: his accuser had gone straight to the police station after the incident alleged, naming JB as the robber. He had injuries to support his story. And when JB was arrested a few minutes after the first report to the police, despite trying to run off, the victim’s phone was found on him. JB had gone on to answer “no comment” to all questions in the police station. His previous convictions for theft and assault were set out for the jury. JB’s girlfriend, also arrested, also facing trial, had placed JB near the scene of the crime, but undermined JB’s account.

Against expectation the victim came to court, animated and adamant about what had happened. The police too, it seemed, had no doubt – after all they had arrested the named suspect and known criminal at the scene. Yet JB was clear there had been no robbery and that the complainant was not to be trusted. The reality was the complainant was not only a drug user himself but a convicted thief and drug dealer too. And there had been another fight reported at the same time just next to the alleged incident… JB’s case was simple – the complainant had been supplying him with drugs before becoming annoyed at being teased, leaving his phone behind because he was high on crack cocaine. There had been no robbery (even if JB may have been in less of a hurry to return the phone than he suggested).

Careful questioning during the trial showed the complainant and his account were not reliable. Details from the prosecution evidence and unused material (obtained during an investigation but not relied upon by the prosecution) sowed more doubt about the assertions being made. The result? A unanimous acquittal for JB, along with his co-defendant. An example of determined representation of an unattractive defendant defeating an apparently clear cut prosecution case by showing the complainant to be at best unreliable and at worst dishonest.

January 18

Lies, damned lies, and (the Minstry of Justice’s) statistics

The day of action on the 6th January 2014 was the first of its kind in 600 years. Barristers stopped working for half of one day in protest at further cuts to their rates of pay. No coincidence that the Government published an ad hoc statistical release about payments to barristers on the 2nd of January 2014.

That release can be found here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/269061/laa-barrister-spend.pdf

The notes on page 5 show the published figures include VAT and all expenses.

Yet Saresh Vara, the Minister for Justice, has touted the figure of £84,000 as the average income for a barrister. This figure includes VAT (20% paid pack to the Treasury) and expenses (roughly 30% of what is left – these expenses include not just travel and professional fees, but payments to clerks who manage a barrister’s administration). Self-employed barristers are paid no pension, maternity or paternity pay. There is no holiday or sick pay. So in reality the £84,000 figure is nearer a salary of £49,000, excluding any pension or employment rights. But even this figure is cherry-picked as it also excludes many of the lowest earners from the Ministry of Justice’s own figures, on the questionable basis they do not work in legal aid full time. The highest figures paid to a very few individuals, usually representing work done over several years (because larger cases can take years to conclude from the first court appearance to sentence and because payments are frequently delayed many months) are of course included.

In contrast the Criminal Bar Association has calculated that the average gross income (i.e. equivalent salary) for a criminal barrister is £27,000 per annum, based on the Ministry of Justice figures. This after years of expensive training to be a key part of the justice system, helping ensure the right people go to prison for the right amount of time.

Put another way, the figure of £84,000 is neither a true average nor representative of true income. It is wholly misleading. On this basis of inclusion of allowances and pension rights, Saresh Vara MP is paid £174,000 per annum (in contrast to the £66,396 published salary for MPs) – not a figure the politicians quote.

These are straightened times and we all accept cuts to public services have to take place, but payments to criminal barristers have not been increased for inflation since 1985 and there are currently cuts in the region of 30% already taking effect: the criminal legal aid budget (the 14th most expensive of 20 European countries) is falling fast. Legal fees in commercial contexts may have risen sharply, but this is not the same at all as rates of pay in the legal aid sector.

Whichever way the figures are considered, the profession is clear the further cuts of between 17 and 30% proposed by the government go too far and will be resisted – it is perhaps difficult to imagine, doctors, teachers or tube drivers accepting a pay cut at all, let alone a 17% one after all. Hopefully the criminal justice system will one day be adequately funded for us all: for the sake of victims, witnesses, defendants, and yes, those that work within it too – otherwise, like America, we will live in a country where court outcomes for the rich are increasingly better than those for the poor.

UPDATE -19th March 2014

The UK Statistics Authority, an independent body, has since criticised the Ministry of Justice’s use of the figures, as can be seen in the report attached to the link below. It just goes to show what seems to be the deliberate misuse of information presented by the government for what looks increasingly like ideologically and not economically-driven cuts to the criminal justice system:

https://www.lawgazette.co.uk/practice/ministry-ticked-off-over-barrister-earnings-claim/5040420.article

January 3

A successful start to the year…

JT had never been in trouble with the police before, but he tested positive for alcohol at a roadside breath test. He was arrested and taken to the local police station. As the reading was a low one (42 in breath with the legal limit being 35), he was statutorily entitled to have his blood tested too. This tends to provide a more accurate result, but it was late and the officer conducting the test suggested it would be quicker and easier not to do the blood test. JT followed the officer’s steer and declined the blood test option. This was crucial as the breath test result was only marginal and a blood test may have indicated a lower reading, which could have precluded prosecution.

Because of the officer’s unfair intervention, however well-intentioned it may have been, JT lost an important right. In those circumstances the breath test procedure should have been excluded as evidence, or the prosecution discontinued because the procedure was or may have been unfair. At the trial in the Magistrates’ Court the video of the procedure was played and the arguments presented, but the Magistrates chose not to accept the clear legal arguments in favour of JT. He faced an immediate one year driving ban, but defendants in the Magistrates’ Court can appeal to the Crown Court against both sentence and conviction as of right. On advice JT did so. His appeal was allowed, with the Crown Court judge making clear his view that the prosecution should never have continued after the defence legal arguments were raised (several months earlier).

The ban imposed by the Magistrates was also set aside pending his appeal so JT was able to drive throughout the proceedings, which took more than a year to conclude from the time of his arrest. The case not only vindicates the original advice to challenge the prosecution, but shows that with a little patience defendants can achieve the desired result, and, as in this case, get awarded their costs too.