All posts by Andrew Wesley/h3>

Mr Bates vs. The Post Office – the story so far

The Post Office Horizon affair has been described as one of the UK’s most widespread miscarriages of justice. It has been a long, complicated and contested saga, involving a campaign for justice, various court cases, compensation schemes, and currently a public inquiry.

The recent docu-drama on ITV has focused public attention upon the scandal.

Beginning in 1999, a number of postmasters (who run individual post offices) experienced difficulties with the Horizon Post Office computer system. The system had faults which showed false shortfalls on the accounts of postmasters. Because of the shortfalls reported by Horizon, some postmasters were suspended or had their contracts terminated, and others were prosecuted, convicted, and imprisoned (for example, for false accounting and fraud).

In 2016, a group of postmasters used a group litigation order (GLO) to take legal action against the Post Office for damages relating to the consequences from the faulty Horizon system. Following rulings from the High Court in the Bates vs The Post Office High Court case, the Post Office settled.

Post Office has identified a total of 700 convictions in cases it prosecuted between 1999 and 2015 in which Horizon computer evidence might have featured.

The total number of all overturned convictions as of 3 January 2024 is 93. This includes five cases in which Post Office was not the prosecutor.

More than £32.4 million has been paid in compensation to date, including 30 full and final settlements.

Convictions data (as of 8 January 2024)

Total relevant convictions (1999 – 2015)	700
Number of completed appeal cases	142
Number of convictions overturned	88
Number of convictions upheld/ cases refused permission to appeal or withdrawn from Court	54
Number of cases currently with Appeal Courts	5
Number of people with relevant convictions not yet contacted – so far unable to be located and require further tracing	25

For whatever reason, some 500 or more victims of this appalling scandal have yet to have their convictions overturned. Whilst some may well be guilty of theft or other offences, it is generally accepted that the vast majority were not.

Understandably, many people may wish to forget this period in their lives, in part perhaps due to a deep mistrust of the criminal justice system.

The slow pace of providing justice for the postmasters increases the harm that has been caused, and some are calling for more radical measures, including an Act of Parliament to wipe convictions from the record.

If you are affected by this scandal and wish to discuss your legal options, then please do not hesitate to get in touch.

Contact an expert criminal defence lawyer to advise on appeal

We have offices across the East Midlands and will happily travel across the country to provide representation for all types of offences.

Alternatively you can use the contact form below.

All posts by Andrew Wesley/h3>

Juror Bias?

Any avid fan of American courtroom drama will be familiar with the idea of lawyers using ingenious methods to try and select a favourable jury panel. In England and Wales, the scope for objection is minimal, and in most cases, the jurors chosen to sit will remain on the case until it is over.

Many defendants may question the potential for juror bias in situations where the type of crime being tried has impacted a juror.

R v Skeete

This issue arose in a recent Court of Appeal case of R v Skeete when the jury sent a note to the Judge in these terms:

“There is a concern from a member of the jury that two other members of the jury have close personal experience of sexual assault and rape – and whether this has influenced their verdict. Is this a concern?”

The judgment records the following:

“…[the Judge] heard full argument from both sides in relation to the application by Ms Thomas for discharge of the entire jury. Her argument in summary was: the note sent on the afternoon of 20 January indicated the possibility of bias on the part of one or more jurors; it would be essential to establish the facts in relation to such bias were the trial to continue; that could not be done since the jury were in retirement and, on the face of it, had reached a verdict; the only safe course was to discharge the jury.

The prosecution submitted that discharge of the jury without any further step being taken was inappropriate. Rather, the jury should be given further directions to ensure that they decided the case only on the evidence.”

In this case, the Judge declined to discharge the jury.  The defendant was subsequently convicted.

The Court of Appeal decided that:

1. On the face of it the note was penned by a spokesperson – possibly the person who was to deliver the verdict – reporting the position in relation to other members of the jury.
2. Its natural meaning was that, at some point during the jury’s deliberations, two members of the jury had explained that they had close personal experience of sexual assault and rape.
3. A third member of the jury had expressed a concern that this experience could have influenced the verdict of the two members of the jury.
4. This concern was not expressed in terms of any direct assertion that it had led to an influence nor was the nature of the supposed influence explained.
5. The jury note in this instance did not make any direct assertion of bias. It raised a concern that, in a case where the allegation was rape, the personal experience of jurors might have influenced their view of the case. The concern was expressed in vague and imprecise terms.
6. The evidence was that two members of the jury had particular personal experiences. The fact that they mentioned them at some point when they were trying an allegation of rape of itself does not indicate bias. The jury note did not provide evidence that jurors were not staying true to their oaths. Rather, it expressed a generalised concern of one juror in the light of what the other jurors had revealed of their personal experience.

In conclusion, the court ruled that:

“In our view the facts as presented to the judge did not require him to discharge the entire jury.”

In so finding, the appeal against conviction was rejected.

Seek our expert advice on Crown Court trials

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about the law and the evidence in either a police investigation or a prosecution.

If you have been interviewed by the police and face court proceedings we can make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

Examples of how we will prepare your jury trial can be read here.

We have offices across the East Midlands and will happily travel across the country to provide representation types of offences.

Alternatively you can use the contact form below.

All posts by Andrew Wesley/h3>

Hey Siri – What’s the answer?

On occasion, Siri or a Google search may well be able to answer a legal query.  For this to be possible, the end-user needs to know whether the information online was accurate when first posted.  Secondly, does it remain correct law now?

As criminal lawyers, we spend years learning the skills necessary to carry out proper and comprehensive legal research using sophisticated legal resources.

The latest research tool to emerge is ChatGPT.   This is more than a mere search engine.  Through advances in Artificial Intelligence it might offer quicker and cheaper ways for people to search for legal answers to legal questions.

Early results are not promising, however.  Recent cases in the USA and England have shed light on apparent dangers of relying on such Artificial Intelligence.

Caselaw invented by artificial intelligence

A lady called Felicity Harber got involved in a legal dispute with the taxman.  During the court case, in which she represented herself,  she used ChatGPT to assist her in fighting her claim.

She supplied 9 cases, along with a summary, all of which were said to support her legal argument.  Mrs Harber said that the cases in the Response had been provided to her by “a friend in a solicitor’s office” whom she had asked to assist with her appeal. Mrs Harber did not have more details of the cases.  In particular she did not have the full text of the judgments or any reference numbers.

The Tribunal told the parties that they had looked at the FTT website and other legal websites.  It had been unable to find any of the cases in the Response. The Tribunal asked Mrs Harber if the cases had been generated by an Artificial Intelligence system, such as ChatGPT.  Mrs Harber said this was “possible”.  She then moved quickly on to say that she couldn’t see that it made any difference, as there must have been other FTT cases in which the Tribunal had decided that a person’s ignorance of the law and/or mental health condition provided a reasonable excuse.

The Tribunal made two important findings of fact in relation to this point:

• That the cases in the Response are not genuine FTT judgments but have been generated by an Artificial Intelligence system such as ChatGPT.
• That Mrs Harber was not aware that the cases in the Response were fabricated, and did not know how to locate or check case law authorities by using the FTT website, BAILLI or other legal websites.

The findings of the tribunal

The Tribunal held:

Although we have accepted that Mrs Harber did not know the AI cases were not genuine, we reject her submission that this did not matter because the Tribunal had decided other reasonable excuse cases on the basis of ignorance of the law and/or mental health issues. We instead agree with Judge Kastel [who ruled in a similar case in the United States], who said on the first page of his judgment (where the term “opinion” is synonymous with “judgment”) that:

“Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court’s time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the…judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.”

We acknowledge that providing fictitious cases in reasonable excuse tax appeals is likely to have less impact on the outcome than in many other types of litigation, both because the law on reasonable excuse is well-settled, and because the task of a Tribunal is to consider how that law applies to the particular facts of each appellant’s case. But that does not mean that citing invented judgments is harmless. It causes the Tribunal and HMRC to waste time and public money, and this reduces the resources available to progress the cases of other court users who are waiting for their appeals to be determined. As Judge Kastel said, the practice also “promotes cynicism” about judicial precedents, and this is important, because the use of precedent is “a cornerstone of our legal system” and “an indispensable foundation upon which to decide what is the law and its application to individual cases.”

In this case it may be that Mrs Harber was treated leniently due to the tribunal acceptance of her apparently innocent mistake.  One might expect more severe consequences in the future.

Unsurprisingly, Mrs Harber lost her case.

Don’t leave important legal matters to chance – always consult an expert lawyer at the first opportunity.

Let us help rather than rely on Artificial Intelligence

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about how the law and the evidence in either a police investigation or a prosecution.

If you are arrested or know that the police wish to speak to you about any criminal allegation make sure you insist on your right to free and independent legal advice.  We will be present in your interview to advise through the investigation stage.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all types of offences.

Alternatively you can use the contact form below.

All posts by Andrew Wesley/h3>

The use of intermediaries during criminal trials is becoming increasingly commonplace. An intermediary may be used to assist any witness, including a defendant, give evidence.

The functions of an intermediary

“Intermediaries are communication specialists (not supporters or expert witnesses) whose role is to facilitate communication between the witness and the court, including the advocates. Intermediaries are independent of the parties and owe their duty to the court.”

Directing the Jury

At the trial, before the witness or defendant gives evidence, the judge should explain to the jury the following:

• The need for an intermediary: e.g. by identifying the problems arising from the age or other difficulties of the defendant or witness.
• The purpose of an intermediary: which is to assist in communication, among other things by helping advocates to ask questions in a way the defendant or witness can understand and/or assisting the defendant or witness to communicate his/her answers to the jury.
• The intermediary is independent of the parties, is present only to assist communication and is not a witness and so is not permitted to give evidence.
• The use of the intermediary must not affect the jury’s assessment of the evidence of the defendant or witness and is no reflection on the defendant or witness.
• If the defendant elects to give evidence, it may be appropriate at this point to give more detail of any difficulties the defendant has, if those difficulties may affect the perception of the jury of the defendant’s evidence.

Assisting a Defendant

The current provisions concerning intermediaries are very much stacked in favour of assistance for prosecution witnesses, but case law makes it very clear that defendants are entitled to equal treatment.

Recent case law (e.g. Dean Thomas [2020] EWCA Crim 117) has placed further hurdles in the way of defendants seeking assistance, but we will always ensure that the legal rights of those we represent are fully protected.  Appropriate applications for an intermediary will be made where necessary.

Giving evidence is daunting for most people, but particularly so for defendants facing the considerable pressure of being accused of an offence that they deny.

You can be assured that we will always act to enable you to present the best evidence possible.

Advocates and litigators experienced in dealing with intermediaries and vulnerable witnesses

Our Higher Court Advocates Andrew Wesley, William Bennett and Denney Lau have all undertaken specialist advocacy and vulnerable witness training.

This involved learning the particular skill of planning questioning suitable to the characteristics of a witness or defendant, taking into account intermediary reports and suggestions.  It is potentially a difficult task to elicit correct facts from vulnerable witnesses where the ability to question is limited.

Our advocates will regularly use the Advocates’ Gateway Toolkit that provides assistance in identifying when a witness or defendant may be vulnerable, as well as helping in the formulation of questions for those who may have, for example, autism or a learning difficulty, or be vulnerable due to their youth.

Our litigators are experienced in identifying clients or their witnesses who may be vulnerable and benefit from the assistance of an intermediary.

Ask for our specialist advice

We provide nationwide advice and representation in criminal matters from our offices across the East Midlands.  You can find your nearest office here have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

All posts by Andrew Wesley/h3>

Solicitor Nick Wright recently attended a Derbyshire Court User Group meeting where changes to remand courts in Derbyshire were presented as a fait accompli.

Lack of legal advisers

HMCTS has lost legal advisers locally.  As a result there are insufficient legal advisers to run occasional courts for Saturdays and bank holidays in both Nottinghamshire and Derbyshire.  As a result from 9 October all remand cases heard on those days will now be dealt with at Nottingham Magistrates’ Court.

The intention is that there be two courts sitting, one for Nottinghamshire cases and one for Derby cases.  HMCTS is still considering whether a third court can be held on bank holidays.

Enquiries were made as to whether other local legal advisers were in a position to step in.  Unfortunately the answer is ‘no’.  The contracts for legal advisers have recently been changed and the raise in basic salary funded by a cut in overtime rates.  Unsurprisingly, there is a lack of volunteers.  No doubt morale will be as low in the Court Service as elsewhere in the justice system.

Although we were told that the courts are committed to filling the staffing gap, and there are currently six trainees in the region, it has been noted that there are no legal adviser position advertised locally on the relevant website.

Problems for Derbyshire defendants

The new arrangements simply ignore the geography involved in order to suit the needs of the court caused by a failure to recruit.

The most northerly firm clients to fall within the Derbyshire ‘catchment’ may be as far away as Glossop.  Glossop to Nottingham is a round trip of 140 miles, over three hours by car.

How will those granted bail or sentenced on a Saturday return home, leaving Nottingham late on a Saturday afternoon?  Who will fund the journey home when many defendants are dependent upon benefits?

It also ignores the reality that family assistance and input is often crucial to permit bail applications to be made.  Addresses and background information are provided by family and friends attending court in person to speak to the solicitor.  Again, these arrangements are likely to render this support far more difficult or impossible, to the detriment of our clients.

Problems for lawyers

Another reality is that the effect of the change is that Derbyshire lawyers will not be able to represent their clients in a cost effective manner.  As a result, the likelihood is that their clients will lose continuity of representation and the benefits that go with that.

Aside from the time involved in travel and the uncertainties relating to the granting of legal aid for those detained, Even if legal aid were granted the Legal Aid Agency has reminded practitioners that Nottingham is a ‘designated’ court.  As a result, no time can be claimed by lawyers travelling to the court.  The journey from Glossop or Chesterfield or Buxton or Derby will not attract any payment.

In terms of the organisation of work within these firms, managers will be faced with an uphill struggle to persuade advocates to attend Nottingham on Saturday mornings for what will inevitably be longer days.

Hunt the client

Unhelpfully, Derbyshire defendants could be found in any number of places on a Saturday morning.   A maximum of 10 clients will be taken from Derbyshire to the Nottingham cells on a Saturday.  The expectation is that rather than be told where a client is, solicitors need to phone the Nottingham cells on a Saturday morning.  If the client isn’t in the cells then it would seem likely they are still at a police station.

Defendants over the magic number of 10 are to be dealt with by CVP from either St Mary’s Wharf police station in Derby or Ripley police station.

CVP can be requested in advance, adding another layer of bureaucracy to Saturday morning courts.  Practitioners are unlikely to know whether the application is granted until the Saturday morning.  Blanket approval cannot be given.

There are limited phone lines that can be used to speak with those kept at the police station and it is hard to see how, 16 months into the pandemic, it is still though appropriate to make a decision on bail and therefore liberty with instructions taken over the phone.

And what of probation?

Unsurprisingly, Derbyshire probation officers will not be expected to serve the Saturday courts in Nottingham, further prejudicing clients.

Defence subsiding the justice system again

It can be seen that once again the defendants and the defence lawyers are meant to absorb the costs of a collapsing justice system.  Where are local courts left were the six trainees not to remain but seek better working conditions in another sector post qualification?  What if more qualified advisers leave?

There appears to be no credible plan, and the number of courts are simply reduced and reduced at the expense of clients, their families, their representatives and local justice.

This may present an opportunity for practitioners to say ‘no more’ and refuse to provide representation in these courts.  It is easy to see how court service failures could be used to justify the closures of courts such as Mansfield and Chesterfield which could easily go the way of Newark or Ilkeston Magistrates’.

Only time will tell!