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Today has seem the publication of the Lammy Review. This is the result of an independent enquiry overseen by David Lammy MP into the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the Criminal Justice System.

The need for a review arose because of concerns such as despite making up just 14% of the population, BAME men and women make up 25% of prisoners. Over 40% of young people in custody are from BAME backgrounds.

It is clear that there are very real problems in the justice system as it impacts on those BAME individuals caught up in the system.

Many sensible suggestions in the Lammy Review

Many of the suggestions within the Lammy Review, while clearly sensible, will require more money and resources in the short to medium term, but could deliver both financial savings and savings in terms of wasted lives later on.
To bring in the proposals, aside from the money, there will need to be a change in mind set from politicians. This will have to be coupled with an intention to ‘do the right thing’ and not allow justice policy to be dictated by the tabloid press.

Proposals such as increased diversity in the make-up of Magistrates, deferred prosecutions allowing earlier structured intervention from agencies or the idea of a person’s criminal record being ‘sealed’ following a demonstration that a criminal history is in the past all seem reasonable changes to make.

Missed opportunity to challenge pre-conceptions?

The Lammy Review identifies that many of the problems that arise are due to the perceptions that BAME individuals may hold about the fairness of the system. The report identifies a lack of trust in legal aid-funded solicitors among both White and BAME offenders as a particular problem.

When spoken to. many questioned the motives of the legal aid solicitors, who were often viewed as representing ‘the system’ rather than their clients’ interests. Offenders commonly believed that solicitors did not have the time or the capacity to advise them effectively in any case.

For example, one prisoner comments “I mean, obviously they don’t really care: they’re duty, they’re working for the police as well.”

A second prisoner confirmed, “I’ve spoken to a lot of people where they have had situations where it almost feels like the duty legal team has taken the opportunity to go to trial, when the individual would have been much better off pleading guilty, the odds were stacked against them, but from a solicitor’s point of view there’s obviously financial benefit for them to continue to trial.”

It is unclear whether any attempts were made to correct the perceptions held by these commentators. It is certainly dangerous to let the views go unchallenged. The ultimate, and perhaps unintended, effect may well be to deter people of whatever background in seeking legal advice during the investigation of an offence.

The Lammy Review would certainly have had an opportunity to comment on whether the views were reasonably held, but seems to have declined to comment one way or another. In relation to particular cases, authority could have been sought to seek the solicitor’s file to see what advice had been given and why. This could have ensured a proper evidential base to support or refute the perceptions.

Lack of action from the Law Society?

Concerns have been expressed that The Law Society fails to promote the services of criminal solicitors in the same way that they endlessly promote family law, wills and conveyancing. The ability to instruct a solicitor to advise a person in the police station is an important right. The Law Society must have an important role in public legal education.

It appears that the burden of such education might fall to individual criminal solicitors. Coincidentally I published an article here earlier this week. Some of the content could be adapted and used locally by practitioners to try and alter damaging perceptions.

An opportunity to stress the independence of criminal solicitors
Criminal legal aid solicitors should use this opportunity to stress that although we are paid by the Government, the free advice and representation that we give is entirely independent of the Government.

Although it is the police who will call us if a suspect is detained in a police station, the free advice and representation that we give is entirely independent of the police. Although it is the Legal Aid Agency that regulates which firms can hold a legal aid contract, the approval of who can act as a duty solicitor is entirely independent of that Agency.

The advantages of instructing a solicitor to advice you in the police station can be found here.

Our professional duty is to our clients, not the Ministry of Justice. This involves a duty to give advice that they need to make the right decisions in their case. It includes a duty of confidentiality. Unless instructed to do so by a client, our advice and their instructions will remain confidential even after the case has ended.

Can legal aid solicitors do more?

As part of a process to change perceptions, legal aid solicitors should share accounts of the work that they undertake and the difference that they can make to their clients’ situation. We publish such accounts on our website. With one or two exceptions, none of the cases are unusual. They hopefully demonstrate the value to clients of instructing an expert in criminal law throughout the lifetime of a criminal case.

This content can be found here.

The Lammy Review should be taken as an opportunity for criminal legal aid solicitors and their representative bodies to show the work that we do and stress the positive outcomes that we achieve. This, and the positive experiences of our clients, will be the way to correct the false perceptions reported.

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Our solicitors are often instructed in cases involving allegations of domestic violence.  The complainants in some of these cases do not support the prosecution.  This lack of support was indicated at a very early stage.  None of the witnesses made statements when the police were investigating the allegations.  The prosecution try to rely on hearsay res gestae evidence.

As a result, the prosecution has sought to rely entirely on hearsay evidence.  In particular, the res gestae exception as preserved by Section 11(4) Criminal Justice Act 2003 has been relied upon.

The test for admitting res gestae evidence

Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.

This principle has been developed in subsequent case law.  As a result the following points have been established which the court should consider in deciding whether to allow a Prosecution application to admit the evidence:

• Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
• The court will need to look at the particular circumstances in which the relevant statement has been made.
• It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness.
• Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection.
• The statement must be closely associated with the relevant event.  The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
• Does the case have particularly features which relate directly to the possibility of concoction or distortion.  This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.

Any issues such as mistakes in the account given are not matters relevant to admissibility of the evidence but factors the court will consider in deciding what weight to give to such evidence.

There is clear case law that the prosecution should not make an application to admit res gestae to circumvent other statutory hearsay provisions.

What evidential matters will the court look at?

The issue of the timing of the statement will be key to any application.  These will include:

• when the victim called the police
• how soon after the incident the victim gave the account said to be res gestae

These are not the only factors that the Court should consider however.   The Court will also need to look at:

• whether there is any supporting evidence for example visible injuries
• the victim’s demeanour when first witnesses attend
• their subsequent words and behaviour
• is there an accurate transcription of recorded evidence such as 999 calls, police bodycam footage or CCTV evidence
• where the victim has made more than one statement, the accuracy and consistency of those statements will need careful consideration
• if there has been more than one telephone call or electronic communication have been made by the same person?

Ultimately each case has to be considered on its own facts.

Should the prosecution give notice of an application?

The Criminal Procedure Rules do not require the prosecution to give notice of an application to admit hearsay evidence under the res gestae principles.  Any notice given very much depends on the prosecutor dealing with the particular case.  Where an application is made in advance and refused the case will end at that stage unless there is other admissible evidence to secure a conviction.

Even where a court admits res gestae evidence it must still evaluate that evidence in the usual way.  The prosecution must still proved its case to the required standard.

Exclusion of hearsay evidence under section 78 PACE 1984

A defendant has an opportunity to apply to exclude evidence of res gestae.  If a court has admitted the evidence, application can be made under Section 78 of Police and Criminal Evidence Act 1984.  The court has a discretion to exclude evidence which would otherwise be admissible.

For example, there may be cases where the prosecution have failed to take sufficient steps to ensure a witness’s attendance at court. The prosecution might have purported to tender the prosecution to the defence.  This means that the defendant would be at liberty to call the witness.

Circumstances like these might permit a persuasive argument that the defendant has been denied an opportunity to test the evidence through cross examination of the witness.

An application to admit hearsay evidence should be an application of last resort.  In many cases the prosecution will attempt such an application when a witness might be available to give evidence as to the facts.

In the case of R v Andrews it was stated that a court should “strongly deprecate any attempt in criminal prosecutions to use the doctrine [of res gestae]as a device to avoid calling, when he is available, the maker of the statement”.

Contact a specialist criminal defence solicitor

On behalf of a defendant, a solicitor must make sure that the prosecution does not use a res gestae application to place otherwise inadmissible hearsay evidence before the court.  Solicitors must ensure that the statutory and procedural safeguards are used to ensure a defendant’s right to a fair trial.

A defendant will wish to instruct a solicitor who is alive to all of the issues relating to this evidence and prepared for an argument at short notice against the admissibility of re gestae.

If you face allegations before the court where the decisive evidence is that of an absent witness then contact your nearest office to speak to a specialist criminal defence solicitor.  Alternatively you can use the form below.

Legal aid will often be available to ensure that the defence of your case will be free of charge to you.

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Mansfield motoring law solicitor Emma Cornell persuaded Magistrates to impose a sentence that dealt with the issues underlying her client’s offending.

An inevitable prison sentence?

Emma first met her client in the cells at Mansfield Magistrates’ Court.  He had been kept by the police for a remand into custody.  This was because he faced new charges of drink driving and driving whilst disqualified.

Unfortunately, these charges were his eighth relating to excess alcohol and third for driving whilst disqualified.  He had received prison sentences for all of his more recent offences.

The seriousness of these offences was aggravated by his history of offending and because he was driving in breach of a court order.

Breaking the cycle of offending?

Sometimes it is right for a court to try and break a cycle of offending.  In this particular case it was clear that Emma’s client had a problem with alcohol.  When in drink he made poor choices and this led to the offending that kept on bringing him back to court.

The maximum sentence that could be imposed in his case was one of six months imprisonment, even for the combination of offences.  As he had pleaded guilty at the first opportunity the sentence was likely to be less than the maximum, even bearing in mind his record.

This meant that he would serve less that 3 months in prison.  He would not receive any assistance while in custody to address his problems.  It seemed unlikely that any meaningful work would be done by probation under licence following his release.

An alcohol treatment requirement

The Magistrates were therefore presented with a stark choice.  Emma persuaded them that there was a better option than a simple prison sentence.  These sentences had failed to work in the past in terms of deterrence or rehabilitation.

After hearing Emma’s persuasive mitigation the Magistrates adopted the probation recommendation.  This was for a suspended sentence coupled with an alcohol treatment requirement.  The aim is to reduce or eliminate a person’s dependency upon alcohol.  This is made possible by the help of specialist agencies working in the community.

Positive client feedback

Emma’s client knew how close he had been to receiving a further prison sentence.  As a result he took the time to write a card and buy flowers to reflect the work Emma carried out on his behalf.  While such thanks is not expected, it is always gratefully received.

Contact Mansfield motoring law solicitor Emma Cornell

Whether you need advice on a police investigation or documentation that you have received from the court then you will wish to contact Mansfield motoring law solicitor Emma.

She will advise you on whether you have a potential defence or whether, for example, special reasons or exceptional exist to avoid a driving disqualification.

Please call her on 01623 675816 or use the contact form below.

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Nottingham crime solicitor Stacey Mighty ensured that her client’s concerns about his prosecution were followed up.  The result was that the charge of driving whilst disqualified was withdrawn.

Driving whilst disqualified

Stacey’s client faced an allegation of driving whilst disqualified.  This was said to have been during the currency of a driving disqualification until an extended re-test was passed.  He denied ever having been the subject of such a disqualification.

The disclosure received from the prosecution did not give a date for when the disqualification had been imposed.  The more detailed print out from the DVLA failed to shed any more light on the situation.

No driving ban

The only conviction that could have led to such an order being made was in 2015 where it appeared that our client had received a simple 6 month fixed term disqualification.

Stacey recognised that her client’s time was precious to him.  She could have asked for the case to be adjourned to another day.  Instead Stacey ensured that the original court file for that date was brought into court.  This confirmed that there had been a driving disqualification without an requirement for an extended re-test.

As a result, the prosecution withdrew the allegation of driving whilst disqualified at this first hearing.

Contact a criminal law specialist

Police, court and prosecution records might be wrong.  The prosecution might not be able to prove an essential element of an offence.  As a result, you will wish to take early advice from a criminal law specialist such as Stacey in order to ensure that your case is properly prepared and presented.

Please call Derby criminal solicitor Stacey Mighty on 01332 546818 to discuss your case.  Alternatively use the enquiry form below.

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Nottingham crime solicitor Stacey Mighty recently avoided a Newton Hearing for her client before the Magistrates’ Court.  A Newton Hearing is a trial of the factual issues in a case.

This allows the court to decide how to sentence a person once they have entered a guilty plea.  They arise where there is a difference between the prosecution and defence version of events that would make a difference to sentence.

An unsuccessful Newton Hearing from a defendant’s point of view can have unfortunate consequences.  Not only will they be sentenced on facts that are more serious, the defendant will also lose credit for having argued an unsuccessful point.

Different accounts in assault allegation

Stacey’s client faced an allegation of assault.  While he accepted that he had committed an assault, he maintained that he had shoved the victim rather than punched them.

The victim of the assault was no longer cooperating with the prosecution, but there remained an independent witness who maintained that they had seen a punch rather than a push.  The prosecution argued that this difference in account would in turn make a difference to how our client was sentenced.

Newton hearing avoided

Stacey argued, however, that the version of events were not dissimilar and the issue of whether there was a punch or a push would make no real difference to sentence.  The Magistrates agreed and as a result Stacey’s client obtained the following benefits:

• he was sentenced on the basis of a push rather than a punch, and
• he kept all of the credit provided by his guilty plea

As a result, Stacey mitigated and persuaded the Magistrates’ that the case was not serious enough for a community penalty.  Instead her client was fined and ordered to pay compensation.

Contact Nottingham crime solicitor Stacey Mighty

Whether you face a police investigation or court proceedings then you will want to instruct a solicitor with expertise in the criminal law such as Stacey.

Please call her on 0115 9599550 or use the enquiry form below.