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The Ministry of Justice is consulting on some minor tweaks to the current legal aid payments for Crown Court litigation and advocacy. The full consultation and supporting documentation can be found here.

Partner and solicitor advocate Andrew Wesley was one of only 46 solicitors who chose to take part in seven focus groups around the country. At the Nottingham meeting, several firms were represented by experienced practitioners, but many firms did not send a representative and their voices were not heard.

33 barristers took part in 4 similar focus groups and expressed their opinions on a range of matters relevant to the consultation. Unfortunately, and perhaps unsurprisingly, they made a case for an increase in fees based on the inadequacy of preparation by solicitors in relation to a whole range of issues.

The general tone of their feedback was that ‘good solicitors’ (or litigators) were few and far between and the independent bar were having to shoulder the burden of what had traditionally been areas for solicitors.

Solicitors criticised by the Bar

The first criticism came within the context of cracked trials, where the work undertaken by more junior counsel was said to be ‘front-loaded’ in terms of the duration of a case, and ‘included litigation aspects’. A damning conclusion was offered that ‘poor quality [and] limited solicitor work was said to drive front loading’.

A second criticism relates to the time spent analysing unused material. This was traditionally a job carried out by the solicitor or litigator who would request the appropriate material and then consider it. Defence statements would be drafted by the solicitor in an attempt to secure disclosure of this additional material.

Unfortunately, last year one barrister reported ‘We’re doing solicitors’ jobs for them as well because they don’t send along their support services, and then we have to do all the returns as well. We have to email people in the middle of the night to tell them what’s been going on during the day. It’s very time consuming.’

This appears to be a widely held view as ‘barrister participants reported that previously solicitors did a thorough job examining the unused material and provided the barristers with details of the areas that they needed to look at. However increasingly, in their view due to financial pressures, solicitors were doing this less and less and leaving it to the barristers.’

Are there any good solicitors left?

The barristers surveyed were able to identify ‘good solicitors’ who still undertook this work, but they are, apparently, few and far between. In all four barrister focus groups the view was expressed that unused was not being considered by solicitors as it should be. Barristers said that ‘this was caused by solicitors being “so overburdened with work” and having so much pressure to make turnover”.

Expanding further, counsel offered this opinion – ‘[Solicitors] earn so little in the magistrates’ court that the litigators’ fees for these cases are just a sort of bounty for them. They don;t do any work on them. It’s those fees that allow them to keep their practices running, so they just punt it all off to the barristers who then have to do all the work on it.’

Unsurprisingly, solicitor participants stated that they did review unused material. It was often a key part of the case and a dereliction of their professional duties if they did not. This may be a result of only ‘good solicitors’ choosing to take part in the consultation exercise.

VHS Fletchers’ attitude to Crown Court cases has not changed. We have Crown Court preparation undertaken by dedicated Crown Court litigators, reflecting the fact that the preparation of Crown Court cases involves a particular skill set. Our litigators attend court, whether in support of independent counsel of in-house barristers of solicitor advocates.

Other local firms have adopted the same attitude, and choose to employ litigators or send solicitors in support and who properly prepare cases, whether for trial or plea.

Ministry of Justice presented with incorrect impression?

However, the reality remains that the barristers surveyed are either misrepresenting the lack of work that solicitors undertake on cases, or they are telling the truth about a significant number of firms. If it is the latter, the Ministry of Justice is getting a skewed version of the professions, but will no doubt make decisions in relation to litigator and advocates’ fees accordingly.

If the truth is that across the board solicitors and litigators are doing less then why would the Ministry of Justice pay us more? If the work we as solicitors are doing is actually reducing then why would we expect to be paid more?

It seems clear that the solicitors who take part in these focus groups are the ones that do the work expected of them and within the existing fee structure. They then take the time to attend these meetings in their own time to try and encourage proper payment for work properly done.

While one effect of consultation documents such as this may be to divide the profession, counsel may be better served complaining about the lack of work being undertaken by specific firms to the firm, Legal Aid Agency or SRA, rather than arguing for a financial benefit as a result of the inaction.

We are talking about Keres & Co aren’t we?

The behaviours explained of by counsel in these focus groups appear to very much match those highlighted by the Secret Barrister by the ‘fictional’ firm Keres & Co.

Everybody knows a Keres & Co (or two) but it appears that nothing can be done about them. The activities aren’t picked up on peer review or Legal Aid Agency Audit. The SRA aren’t interested without ‘evidence’ and of course evidence coming from disgruntled clients (who may well have convictions) may not be particularly persuasive.

We have now, however, reached a point where not only are these firms taking work from those solicitors that will do the work, but are now affecting our ability as a profession to negotiate proper fee increased that reward a job well done. They have given the Independent Bar ammunition to use in an attempt to secure a greater share of the ever shrinking legal aid pot.

Tell the public what good solicitors should be doing for them?

Those ‘good solicitors’ left need to publicise what we do and work with counsel to publicise what should be expected of a litigator. This will allow clients a better insight into what their solicitor should be doing for them, improve the lot of the barrister, and help secure a financial settlement that is fair to both halves of the profession.

All posts by Andrew Wesley/h3>

Circumstantial evidence is widely misunderstood.  Many people cannot understand how a case can be advanced without primary evidence of wrongdoing.

To illustrate this, we can use two examples relating to burglary.

Burglary can be committed in quite a few different ways, but the most common allegation is that a person entered a building as a trespasser and stole something that did not belong to them.

Scenario 1:

David breaks into a home.  He is seen by a neighbour who calls the police. When the police arrive they arrest David inside the house, he has jewellery in his bag and was intent on stealing more valuables.

This is a classic case of burglary, with direct evidence of David being in the property and having stolen something.

Scenario 2:

A neighbour hears a house alarm and goes to investigate. Upon seeing a man, David, acting suspiciously further down the street.  The neighbour apprehends the man. When the police arrive, they discover that David has jewellery which is traced back to a local house that has been burgled.

In this case, there is no direct evidence that David entered the property, which is a vital element of the offence of burglary. However, his presence in the vicinity and possession of the stolen property (referred to as ‘recent possession’ in law) is strong circumstantial evidence of David having entered the property. How otherwise did he come into possession of the jewellery?  There may be other reasons, but that will be something for David to explain when interviewed by the police).

In law, circumstantial evidence can be explained in this way:

“A circumstantial case is one which depends for its cogency on the unlikelihood of coincidence: circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities”.

The prosecution seeks to prove separate events and circumstances which can be explained rationally only by the guilt of the defendant.

Those circumstances can include opportunity, proximity to the critical events, communications between participants, scientific evidence and motive.

The subsequent conduct of the defendant may also furnish evidence of guilt, for example evidence of flight, fabrication or suppression of evidence, telling lies or unexplained possession of recently stolen property.

The question for the jury is whether the facts as they find them to be drive them to the conclusion, so that they are sure, that the defendant is guilty (McGreevy v DPP [1973] 1 WLR 276).

Some degree of caution must however be exercised. It has been held that circumstantial evidence must always be:

 “…narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. …It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

(Teper [1952] UKPC 15).

Teper and McGreevy were considered in Kelly [2015] EWCA Crim 817 in which Pitchford LJ said:

“The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt.

However, as the House of Lords explained in McGreevy, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect: Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.”

Conclusion

As can be seen from the above analysis, circumstantial evidence can be powerful and compelling evidence against a person accused of criminal activity, but it must always be analysed with the utmost care.

As experts in criminal law, we are acutely aware of the dangers of circumstantial evidence and take care to ensure its relevance is appropriately understood and not overestimated.

Instruct an expert in criminal law

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about how the evidence in a case fits together.

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.

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 football related offences.

Alternatively you can contact us using the form below.

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Many professionals are held by their regulators to a higher standard than other members of the public. Conduct which may fall well short of being criminal in nature may nonetheless excite the interest of a regulator, with the potential for censure.

In the most recent case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin), a barrister failed in his challenge to a sanction being imposed in respect to an unpleasant social media post.

 

No ‘second bite of the cherry’

The court emphasised that an appeal was not a de novo exercise, allowing for another chance to litigate the same points in the hope of a different finding.

The court held:

“There is another strand to the self-restraint required of an appeal court that is relevant here. This is an appeal against a professional disciplinary Panel.  Where the Court considers on appeal a decision of a profession’s regulatory or disciplinary body it:

“…will place weight on the expertise brought to bear in evaluating how best the needs of the profession and the public should be protected” (Council for the Regulation of Healthcare Professionals v General Medical Council [2005] EWCA Civ 1356 [2005] 1 WLR 717 [78]).

In the context of sanctions imposed by regulators of the legal profession, the Court will keep in mind that the tribunal “.. comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are J required to deal with defaulting solicitors and to protect the public interest.

Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal.

Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.””

This part of the judgment is a salutary reminder that it is all essential to get things right at the first hearing. Any professional who faces regulatory proceedings should take particular care to ensure that the solicitors and barristers instructed are sufficiently expert in this field of law.

Right to a private life?

The central ground of challenge was that the regulator had no jurisdiction to deal with disputes of this nature, with Diggins arguing that:

“…participation in a “twitter spat” was an aspect of his private life which, on the proper interpretation of the BSB’s own rules and guidance and/or as a matter of human rights law, falls wholly outside the proper scope of professional regulation.”

The court emphasised that the regulators own guidance makes very clear that transgressions in a professional’s private life may be considered. The court went on to reject a large number of ECHR human rights challenges.

Rather tellingly the court held:

“…[caselaw does not] provide any support for the further argument advanced to me by the appellant, that the Panel could not properly find against him because “Twitter is famously rude and offensive and complaining of that is like going to a Motorhead concert and complaining it is too loud”.

It is a notorious fact that many on Twitter use rude and offensive language, indeed that some engage in harassment of others, or wounding “pile-ons”.

But I have no evidence, nor is it a matter of common knowledge, that everybody on Twitter behaves in these ways.

Even if that was so, a descriptive norm of that kind could not confer a right on any individual user to post rude or offensive messages. If the argument is that every Twitter user makes a voluntary submission to behaviour of that kind, no such argument was advanced below, and I consider it to be untenable.

I see no evidential or other basis for concluding that all Twitter users consent to being treated abusively or offensively.”

Conclusion

In all probability, we have not seen the last of these challenges to the jurisdiction of a regulator to police behaviour of this type. It is, however, becoming quite clear that the courts appear to take little issue with the regulatory approach, and all professionals would be wise to reflect on how they interact on social media and other platforms.

Contact a specialist regulatory solicitor

If you are facing proceedings relating to professional conduct and regulation then please contact specialist regulatory solicitor Martin Hadley.

He will be able to provide you with advice and representation at all stages of any criminal, regulatory or disciplinary matter.

Please contact Martin on 0115 9599550 or use the contact form below.

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Matt Hancock, Secretary of State for Health and Social Care, has written to NHS staff voicing his concern in relation to the use of violence against emergency workers.  Hancock’s approach mirrors that taken last year by police chiefs who were worried about the rise in violence used towards their police officers.

Last year’s NHS Staff Survey revealed that 15% of NHS staff and 34% of ambulance trust staff had experienced physical violence.  As a consequence, the NHS, police and Crown Prosecution Service have approved a joint agreement on offences against emergency workers.

The purpose of the joint agreement is to provide a framework to set out what victims of this crime can expect and to ensure effective investigation and prosecution. The joint agreement is in relation to assault on all emergency workers and there seems to be a renewed focus on this area.

What differs from the policy towards other victims of violence?

At investigation level the agreement sets out that the Victims’ Code applies.  As a result victims will be offered the opportunity to complete an impact statement  This is the same for all victims, but there are substantial differences in other respects:

• organisational impact statement – the organisation (hospital, GP surgery, ambulance service) cam set out the impact that the crime has had on their service
• community impact statements may be submitted
• guidance on the management of potential exposure to blood-borne viruses should be considered. It advises on the risk of infection through injury of Hepatitis B, C and HIV

The decision to prosecute

The charging decision is made in the same way for all offences using a two-stage test.  The first question is whether there is sufficient evidence for a realistic prospect of conviction.  If the answer is yes, the second question is whether a prosecution is required in the public interest.

It is acknowledged that assaults on NHS staff are sometimes committed by those in crisis or with neurological conditions.  The CPS must take account of the level of culpability of the suspect including whether he or she was affected by any significant mental or physical health or disability.

If they were so affected, it may mean that a prosecution is not required. On the other hand, prosecutors are told that a prosecution is more likely if the offence is committed against a person who is serving the public at the time.

Challenging a decision not to investigate or prosecute is the same for NHS staff as for other victims.  An issue can be raised with the police if they decide not to proceed with an investigation or the victim’s right to review can be invoked following a CPS decision.

An important aspect of seeking our expert legal advice if you are being investigated or prosecuted for such offence is that when  appropriate we will identify cases where it is appropriate to challenge a wrongful charging decision.

This will be particularly relevant in cases where a client was suffering from mental or physical disability that could have affected their judgement.

A Seven-point plan

The agreement contains a pledge to emergency workers via a seven-point plan, which can be summarised as:

1. assaults and hate crimes will be investigated in the same way as for members of the public;
2. the Victims’ Code applies to all victims including staff and volunteers;
3. the affected member of staff should not investigate their own assault;
4. the right welfare and supervision should be offered to victims;
5. the supervisor must ensure that the head of department is informed to provide continuity of welfare support;
6. the victim is to complete a Health and Safety incident report with their supervisor;
7. to ensure a successful prosecution, the best evidence must be presented.

As can be seen, this plan tackles a perception that assaults against emergency workers could be seen as being something to be expected or tolerated as being a part of the job.

All our lawyers are trained to ensure prosecution guidance is properly applied.  We are also trained to ensure that Magistrates and Judges properly apply the sentencing guidelines for any given offence.

It is always a risk where particular types of case are given substantial publicity that courts react in an overly harsh way towards defendants.  We will ensure that the best result possible is secured on your behalf.

How can we help?

Assault on an emergency worker is more serious than common assault, carrying a sentence of up to 12 months, and as a result we are seeing more cases come before the Crown Court for sentence.

More serious assault will continue to be charges as allegations of assault occasioning actual bodily harm or wounding.

If you are arrested or know that the police wish to speak to you about an allegation involving an emergency worker, make sure you insist on your right to free and independent legal advice.

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 football related offences.

Alternatively you can contact us using the form below.

All posts by Andrew Wesley/h3>

Covert Filming of Sexual Activity or Voyeurism

In 2015 Emily Hunt complained to the police that she had been raped in a hotel room. She had also been filmed, naked and asleep, without her consent. Although she is entitled to anonymity, she waived that right to draw attention to her case.

The Crown Prosecution Service did not authorise any charge, either for rape or voyeurism. Emily maintained that any sexual activity was not consensual but did not challenge the Prosecution decision not to charge the man with rape.

She did, however, suggest that the decision in relation to the voyeurism charge was wrong.

Definition of voyeurism

A person commits the offence of voyeurism if:

• for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
• he knows that person does not consent to being observed for his sexual gratification.

In Emily’s case, the man accepted he had filmed her “in case he wanted to masturbate at some point”.   It was also conceded that there was evidence he had filmed her without her consent.

Under the victim’s right of review procedure, Emily challenged the decision not to prosecute the man for voyeurism. The Prosecution upheld their original decision saying that a consensual sex act would involve a person observing your naked body and that the observation could extend to filming.

Judicial review of the decision

Emily applied for a judicial review of the decision, submitting that errors of law were made by the prosecution in making this decision.

In particular, it was argued that the Crown Prosecution Service wrongly treated the question of whether Emily consented to the sex as being decisive of the question of whether she was doing a private act when she was subsequently filmed naked and asleep.

The focus was wrongly on whether she had a reasonable expectation of privacy rather than whether she was doing a private act. It was also argued that it was wrong to say that non-consensual filming of a sleeping person when naked is not really different, in terms of privacy, to being observed asleep when naked.

The real issue was the correct approach to the phrase “doing a private act”.

Outcome of the review

The Court of Appeal has now ruled that anyone who films a partner, during sex, without their permission is committing the offence of voyeurism. This decision was made in the case of a man who filmed himself having sex with prostitutes. Tony Richards had argued that he was allowed to film as a bedroom could not be a private place if he was lawfully present.

Richards appealed against his conviction on two charges of voyeurism. Unusually, Emily Hunt was given permission to intervene in the hearing. She was allowed to put forward the submission that consent should be the primary issue in these cases.

Richards argued that the issue could not be consent when the place where the offence occurred was shared with another person. The test, according to him, was whether the person had a reasonable expectation of privacy. Richards accepted that filming without consent was a “betrayal of trust” but not that it was an illegal act.

On dismissing the appeal, it was said “a defendant can be guilty of an offence of voyeurism even when he is a participant (in relation to having sex) … section 67 of the Act which protects individuals against the recording of any person involved in a private act is not limited to protecting the complainant from someone not present during the act.”

The Crown Prosecution Service subsequently confirmed that they would be reviewing their position in respect of Emily’s judicial review. A spokesperson said “what constitutes a ‘private act’ for the purposes of the offence of voyeurism had never been conclusively defined by a higher court” until the case of Richards.

It was later said, by the Centre for Women’s Justice who supported Emily’s campaign, that the Crown Prosecution Service was no longer resisting the judicial review and would look again at the decision not to prosecute.

What to do if you are accused of voyeurism

Voyeurism is a serious offence that can be dealt with at the Magistrates’ Court or the Crown Court.  It carries a maximum sentence of 2 years’ imprisonment.

A conviction can also lead to notification requirements under the Sexual Offences Act 2003 and restrictions on working with children or vulnerable adults.

The consequences of a conviction can, therefore, be far reaching.

If you are arrested or know that the police wish to speak to you about an allegation such as voyeurism, make sure you insist on your right to free and independent legal advice.

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.

You can read more about how we prepare such a case for trial here.

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 football related offences.

Alternatively you can contact us using the form below.