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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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The forensic Testing Scandal – Is My Conviction Safe?

New details have emerged about forensic testing deficiencies at two of the country’s leading laboratories. The police are currently investigating the circumstances.  As a result of this investigation a number of people have been arrested.  People will be asking themselves ‘Is my conviction safe?’

Randox Testing Services (RTS) and Trimega Laboratories handle samples for some of the most high-profile criminal and family law cases.  As a result the accuracy of the tests are of paramount importance to people facing criminal prosecution for offences ranging from drink driving to murder.

Home Office Minister Nick Hurd told parliament:

‘Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable. RTS was mainly commissioned by individual police forces when investigating criminal offences.’

It is believed that the results from as many as 10,000 tests could be under review.

Is Your Conviction Safe?

If a conviction in your case rested wholly or partially on the reliability of forensic tests, it is essential that you seek further legal advice immediately.

While the Crown Prosecution Service will be carrying out a review into criminal cases this will take a considerable period of time.  Some reports are mentioning a three year time frame.  Many will be questioning in any event whether the body that brought the prosecution in the first place is ideally placed to make decisions as to the safety or otherwise of a conviction.

Criticisms of the laboratories have previously been raised over the years, but it appears that the police and the prosecution continued to be content with the results produced.

Those who might be affected by an analysis by these laboratories will, therefore, wish to consider whether any further forensic testing ought to take place, and even whether or not there are grounds to appeal. All convictions involving these laboratories will need to be considered on a case by case basis.

Even if your cases did not involve the two laboratories currently under investigation, this scandal throws a spotlight on the hidden world of forensic testing and may call into doubt results from other forensic testing providers.

How we can assist with an unsafe conviction?

Regardless of whether VHS Fletchers handled your case initially our experienced team of criminal defence lawyers has the expertise to ensure the safety of your conviction is beyond question.

If you believe that inaccurate forensic testing may have led you to be wrongfully convicted (and that includes pleading guilty to an offence), please contact your nearest office to speak to one of our expert criminal lawyers.

Alternatively you can use the contact form below to request a call back.  We can help answer your question ‘Is my conviction safe?’

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Closure of Newark Custody Suite

Response to Consultation

This is the response of VHS Fletchers to the consultation paper released by the Legal Aid Agency (LAA) following the notification on 25 October 2017 of the closure of Newark custody suite with effect from 6 November 2017.

All Newark arrests from that date will be taken to and processed at Mansfield Custody Suite.  The residents of Newark have already lost one public resource, that being the ability of the police station to process prisoners.  There is a very real risk that they will lose another – detainees receiving advice from solicitors local to Newark.

The consultation document invites responses to three alternative revisions to the Newark and Mansfield Police Station Duty Solicitor Schemes. Only one of those appears to put the needs of those from Newark who are arrested first.

Since the consultation document was published there have been two important indications from the police which impact upon the proposals:

• Cases that are identified as Newark cases will continue to be charged and either bailed or held to appear at Nottingham Magistrates’ Court rather than Mansfield Magistrates’ Court.
• The police will continue to contact the Newark Duty Solicitor Scheme in cases which are identified as “Newark arrests” and will ensure that the Duty Solicitor Call Centre (“DSCC”) is informed in all cases where the detainee was arrested for an offence committed in Newark.

It follows from these indications that Mansfield custody suite is able to and intends to identify cases that have historically been dealt with at Newark police station.  As a result, they should be able to direct those who seek the advice of a duty solicitor to a firm local to Newark.

The proposed options for changes to the scheme can be summarised as follows:

1. That the Newark Police Station Duty Scheme is merged with the Mansfield Police Station Duty Scheme with effect from 1 January 2018 with members of an extended Mansfield scheme covering both Mansfield and Newark police stations.
2. That the Newark Police Station Scheme is retained as a separate scheme and Duty Solicitors on the Newark rota will be directed by the DSCC to attend at Mansfield police station.
3. Newark Police Station Scheme retained as a separate scheme and firms post 1 January 2018 can elect to join either the Mansfield police station duty rota or standalone Newark scheme (if retained under option 2)

The LAA have helpfully indicated that they prefer option 1. The reason given is that options 2 and 3 are reliant upon the police being able to identify to the DSCC “Newark cases”.  A more cynical view might be that the LAA and DSCC would have one less scheme to administer under option 1, resulting in an inevitable reduction in administration costs.

Fortunately, since the consultation document was published, the police have set out their intention to continue to identify Newark cases at the point of arrest and charge.

As a result, there appears to be no requirement for option 1 to be adopted unless there are ulterior motives on behalf of the LAA.

VHS Fletchers supports Option 2 for the following reasons:

This firm’s investment in Newark

When new legal aid contracts were to be awarded this firm chose to apply for a contract for a new Newark office.  The closure of Newark custody suite was not anticipated.  The office is staffed with two crime solicitors local to Newark – Ian Carter and Barbara McDonnell.  We have since recruited a further Newark based lawyer – Legal Executive Advocate Nikki Carlisle – signalling a clear indication to continue to develop our business there.

Of course, we are in business.  The rationale behind the investment that we make in training and recruitment of duty solicitors is that they provide access to new work through the duty solicitor rotas. Option 3 supports those firms who, like us, have chosen to locate their offices in Newark in order to provide legal aid services to that particular community.

Newark deserves its own duty solicitor rota

Newark-on-Trent is the largest urban area within the Newark and Sherwood District.  It has a population of just over 37 000 residents. Of the three firms in Newark that currently undertaking criminal Legal Aid work, only our firm has office both in Mansfield and Newark.

Should Option 1 be adopted, Newark residents who are detained at Mansfield police station may very well be represented by a duty solicitor from a firm who only has an office in Mansfield.  It is understandable that suspects will usually choose to have continuity of representation.  This might be either whilst they remain on police bail, under investigation or following charge when the matter appears at court.

Prohibitive journey times

However, in seeking continuity, such clients would face a journey of 20 miles simply to see their solicitor to give instructions and take advice. By car that journey takes between 40 and 50 minutes.  By public transport this time rises to 1 hour and 30 minutes for a single journey.

The same situation will of course arise in relation to residents of Mansfield who are represented by a duty solicitor who only has an office in Newark.  It is true that many of those that require the services of criminal legal aid solicitors are vulnerable themselves and on a low income that would make such a journey very difficult.

It is our view that it is both unreasonable and unconscionable to expect those being investigated for criminal offences to have a return journey of three hours simply to see their solicitor.  This stress and expense would be imposed on top of the emotional burden that the investigation of proceedings impose on any individual.

Local legal aid solicitors should be supported

Option 2 supports those criminal legal aid firms who have chosen to locate their offices in Newark.  This is in order to provide legal aid services to that community. It would mean that the arrangements within Option 2 could commence immediately following the closure of the Newark Custody Suite.  Newark based firms would not have to suffer the inevitable financial hardship of not having access to Duty Solicitor work for a period of two months.

Such a decision would be seen as supportive of a legal aid provider base that it is acknowledged is financially fragile.

Perverse consequences of merging two duty schemes

The perverse consequences of Option 1 would be to permit automatic access to Newark residents requesting the duty solicitor  to firms solely based in Mansfield.  Access to such Mansfield residents would be granted to firms solely based in Newark.

Whilst some firms may see there is a financial advantage in having a place on a merged duty scheme following the closure of Newark custody suite, this would be to ignore the needs of local Newark residents.   Financial advantage should never be allowed to outweigh the impact on those we represent and assist who are often ill-equipped to represent themselves.

On this basis, Options 2 and 3 would be unattractive and unacceptable to clients where the duty solicitor may or may not be based geographically convenient to them.

An increase in LAA costs?

The LAA will have to budget for increased travel claims from Newark firms to Mansfield custody suite following the closure of Newark custody suite.  An additional consequence is likely to be that the LAA has to fund more instances of advice and assistance in the police station.  It seems likely that clients, once they discover where their duty solicitor is based, will want to transfer to a local firm.  Where the duty solicitor has been instructed a second fee may be properly claimable by the second local firm nearer to a suspects home address

Clients to choose for themselves

Following the closure of Newark custody suite, if clients wish to choose a geographically distant firm then that must be a matter for them. To have a geographically distant firm inflicted upon them is a separate matter that should be avoided where possible.  The risk of a reduction in access to justice must be apparent to all who consider the issue.  The problem would be avoided by the adoption of Option 2.

Instruct a Newark crime solicitor

Despite the closure of Newark custody suite, the best way to ensure that you instruct a solicitor local to you if you are a Newark resident is to make sure you ask for VHS Fletchers if you are arrested and detained by the police.  We offer free and independent legal advice on 01636 614013, 24 hours a day, 7 days a week, 52 weeks of the year.

If you know the police want to speak to you, contact us and we will be able to make the necessary arrangements for you to be interviewed.

Should you face proceedings at either the Magistrates’ or Crown Court then we will see you at our Newark office to take your instructions and give you expert advice.

Please use the contact form below if you wish to email your enquiry.

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A worrying increase in the reports of noise nuisance from students

Local news often reports unfavourably on parties held by university students which often cause a number of complaints from local residents about noise nuisance. You can read one such story here.

The latest warning from the Nottingham City Council can be found here.

There is always likely to be issue arising when an area has a high number of students living in private rented accommodation within a residential area.

Very few students deliberately set out to annoy their neighbours. Problems with noise nuisance seem likely to result from a combination of alcohol and a genuine lack of thought.

Complaints to the police and the council are on the rise. If you are a student and live in a residential area then you are always likely to be at risk of a complaint if you or your household make excessive noise after 11pm.

What are the consequences of a complaint against you for excessive noise?

The  position may depend on whether or not you are in a university owned accommodation or not.

Most universities publish codes of conduct that students must sign up to when enrolling. Whilst every university code will differ in some way they tend to follow the same format.  There is likely to be a provision permitting a student to be disciplined for excessive noise in university owned accommodation.

The discipline procedure for excessive noise nuisance is likely to involve a report to a designated university officer.  The officer will have the power to issue you with a reprimand or a fine.

Repeated and persistent breaches or other serious offences can result in you being removed from your university accommodation.  You could also be reported to the university senate disciplinary committee.  This would lead to a disciplinary hearing.   A wide range of penalties are available for serious, persistent offences.  Ultimately this can include exclusion from the university.

Private student accommodation

Even if you live off campus in private student accommodation then you could still find yourself at the sharp end of the university disciplinary regulations. Many universities stipulate within their code of conduct that behaviour off campus that damages the reputation of the university is considered an offence under the disciplinary regulations.

For example, the University of Nottingham is quoted in the BBC news article as saying that students would be disciplined if their behaviour ‘compromised the safety of others’.

Statutory Nuisance

Additionally, it is not only the university that can instigate proceedings against a student for excessive noise.  Local Councils have the power to look into complaints about noise that could be categorised as a statutory noise nuisance.

For the noise to be a ‘statutory nuisance’, it must do one of the following:

• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
• Injure health or be likely to injure health

Councils must serve an abatement noise on persons who cause a statutory nuisance. This means that whoever is responsible must stop the noise. If they do not then they can be issued with a fixed penalty notice giving them the opportunity to pay a fine of £110 within 14 days in order to avoid prosecution.

If you do not pay the notice or fail to pay it within the 14 days then you can be prosecuted. This means that you will be given a court date, and if guilty you could be fined up to £1000 and order to pay the costs of the prosecution.

Civil Injunctions for noise nuisance

Both a council and the police have the power to apply for a civil injunction in the county court against those that create excessive noise that is capable of causing nuisance or annoyance. Breach of the injunction can lead to a prison sentence.

Contact a specialist to discuss any aspect of noise nuisance

If you are a student and you have a concern about a complaint raised against you then please contact education law solicitor Clare Roberts on 0115 9599550.

Clare, and other members of our team, have experience in advising and representing students who face both university disciplinary matters or allegations that have been reported to the police.

Alternatively you can use the contact form below to seek confidential specialist advice.

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Education Law and Criminal Defence Solicitor Clare Roberts was welcomed by students at West Bridgford School on the afternoon of Monday 21 September.  Following an invitation she delivered a talk about ‘Routes into Law’ to sixth form students who are contemplating studying law at university.

The talk focused on university applications including what to do if you do not get your expected grades, as well as the proposed changes in the route to qualification as a result of the proposed scrapping of the Legal Practice Course in 2020.

Clare also spoke with students about ‘a day in the life of a solicitor’ so that they had a sense of what a day at court was like, including the unpredictable hours!  Further information about the unpredictable nature of the work can be found here.

The students who attended the talk had lots of questions to ask about studying law at university.  Clare was also able to help with how the training within a firm thereafter will work.

Clare was really impressed with how knowledgeable the students were about their career options but also impressed by the careers education scheme run by Caroline Nolan at the school, which sees a variety of different professionals give talks to sixth form students at the school over the next few months.

It appears that the students were equally impressed by Clare, who received some positive feedback.  We hope we will be able to assist this and other schools again in the future.

If you think your students might be helped by a presentation such as this one then please contact us using the form below.  It is likely that we will be able to provide a solicitor local to your school or college to assist with any information you might need.

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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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Nottingham crime solicitor Lauren Fisher secured a not guilty verdict for her client following careful cross examination of a witness.  He faced an allegation of common assault.  He was said to have punched his partner once to the face when drunk.  She had visible injuries – bruising and swelling to her cheek bone.

Preparation of cross examination

In order to present your best case at trial, an experienced advocate will plan how best to ask the questions.  For example, in this case, Lauren would have to question the witness to suggest that she was not telling the truth.  If a witness’s truthfulness is challenged immediately, it might be unlikely that they help an advocate with other information that they could give.

As a result, Lauren questioned the witness first to establish that a third person had been present during the incident.  The witness, in answer to questions, confirmed that this person was a mutual friend who would not favour one party over another.  They had no reason to lie that the witness could think of.

This information was important as the third person was to be called as a witness for the defence.

Lauren then moved on to more contentious issues.  She cross-examined the witness on the important differences between the account she gave in her statement and the evidence she had given to the court.

At one point the witness conceded that she had “tried to contact the police to change my statement as I knew it did not make sense”.  This was an important concession by the witness.

Self-Defence raised

Our client’s defence was that he had been acting in self-defence but the injury was accidental.  He maintained that he was being hit by both the complainant and her friend.  Perhaps unsurprisingly, if this was true, her friend had not given a statement to the police.

A statement had been taken by Lauren from the mutual friend who had been present.  Unfortunately the police had failed to seek accounts from anybody else who had witnessed the incident.

Closing speech dealt with the detail

In closing, Lauren was able to outline all of the problems and inconsistencies with the account that the witness had given under cross examination.  She was able to point to the consistent account given by her client and the third party.

After due consideration, the Magistrates found her client not guilty.

Lauren’s client took the time to thank her for the work that she had put into his case.  He wrote:

“Hi Lauren, I’m very happy with what happened today.  You are a good solicitor.  The way you handled the whole situation was good. Thank you again for helping me”

Contact Nottingham crime solicitor Lauren Fisher

Whether you face a police investigation or proceedings before the Magistrates’ or Crown Court you will wish to instruct a solicitor who will spend the time preparing your case.  This might involve making sure that advice on the law is correct.  If could be giving careful advice on plea or sentence.  In this case it involved preparing a structure for cross examination of a witness to ensure Lauren’s client had the best opportunity for a not guilty verdict.

If you want to contact Lauren to discuss a case then please call her on 0115 9599550.  Alternatively you can use the contact form below.

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Litigator’s Graduated Fees Scheme and Court Appointees Consultation Papers

The litigators’ fee consultation ends on 24 March 2017. The government promised a full review of the way the litigator fee is paid. Instead it simply proposes a cut to that and the fees available for court appointed cross examination.

Respond to the Litigators’ Fee Consultation

Our response is here below, but if you wish to add your own then please follow this link,

Question 1

Do you agree with the proposed reduction of the threshold of PPE to 6.000?  Please give reasons.

It is premature to take such a step without the promised review of how criminal litigators are paid.  At this stage, without further review, this is simply a dramatic fee cut, albeit in a small number of cases.  A simple fee cut cannot be properly described as an ‘update’ to ‘the way we pay criminal litigators’.

Bearing in mind the fragile nature of the supplier base, this step should not be looked at in isolation.  The profession currently awaits an announcement for what the rates of pay will be under the new 1 April criminal legal aid contracts.  The following still appear to be undecided:

• Will there be a reinstatement of the suspended 8.75% cut?

• Will firms who have invested in in-house advocacy suffer the dramatic cuts predicted under the AGFS reform proposals?

• What will be the effect of the promised LGFS review in terms of fee levels?

The Ministry of Justice is already in possession of research that demonstrates the likely effect of further fee cuts that will render the provision of legal aid advice and representation economically unsustainable.

At this stage, it is hard to see how these proposals ‘reduce bureaucracy’ or remove ‘unnecessary burdens’ on litigators.  It simply removes money for cases that need preparation by ‘expert litigators’ as acknowledged by the Ministry, and therefore the means to pay these experts a level of pay commensurate with their expertise.  Indeed, the proposal to require claims for ‘special preparation’ in a higher proportion of cases imposes bureaucracy and burdens on both the litigator, firms and the Legal Aid Agency or Criminal Cases Unit.

Litigator’s fees are properly based on the amount of pages of evidence served by the prosecution.  The amount of PPE is a useful proxy for how long a case will take to read.  It cannot be the Ministry’s position that the PPE should not be read – in the discharge of expert professional advice and representation it must be.

In serving the PPE, the Crown Prosecution Service must be sure that it is relevant and admissible.  If not, it would fall within Unused Material.  There is, of course, no payment due to litigators for considering such material.  In the larger cases there will be more of this material, and again the PPE proxy factors in that consideration and is a fair indication of how much additional material will have to be considered.

It would appear that the position of the Ministry is that more material is now being served than was being served when the scheme was designed.  If the material is not relevant, it should not be served, and would not be remunerated.  That is an issue for the Crown to address with the Prosecution.  It is likely to be seen as something of a blessing if the CPS could show restraint in what was served, rather than adopt the current position where many pages are served in electronic form at the last minute, with no hint of relevancy until the pages are considered by the litigator.

More restraint from the Crown would result in reduced LGFS payments and the more streamlined justice system that the Ministry wishes.  In the meantime, litigators should not be financially penalised.  The current system is closer to the aim of reflecting fair payment for work reasonably done (ie. reading the case and advising accordingly) that the proposed limit of 6000 pages.

A litigator will always ‘need’ to read the papers served.  Napper has not contributed to the Crown decision to serve more papers.  Over the years the various Statutory Instruments began to include electronically served evidence in the definition of PPE to reflect changing technology.  The effect of that was always going to be an increase in LGFS payments.

Napper simply reflected the current technological developments that permit the creation of pages of evidence that have never been on paper – presumably just the sort of development that the Ministry would embrace.  It is disingenuous to suggest that pre-Napper there was a limit of pages claimed – these proposals do not return the situation to pre-Napper costs.  As a result, the Ministry should consider whether the objection is to electronic statements or amount of PPE served by the Crown.  Once considered, the Ministry can simply confirm this is a fee cut that fails to recognise the current realities of service of PPE.

All evidence is now served electronically on the Crown Court Digital Case System.

The Ministry is in error in suggesting that, for example, phone evidence is quicker and easier to read than other evidence.  The ‘search function’ may identify any particular number, but it will not permit a detailed analysis of patterns in calls, combinations of calls or call duration that might be relevant in a complex conspiracy.  It will not interpret text messages that contain slang or abbreviations.  It will not permit the preparation of an argument that will undermine a prosecution assertion.  Once more, this would appear to be a consultation put forward that has no interest in exploring the realities of preparing a complex criminal case.

We note that, at least in part, the decision to cut fees is based on ’anecdotal evidence’ from case workers.  We would suggest that this is not a proper base for drastic fee cuts.  It is not possible to draw any conclusion as to a fall in Special Preparation claims – it may be likely that firms are simply defeated by the unnecessary burden of bureaucracy that this imposes so do not bother.  The Ministry will know, anecdotally, that firms often undertake work for clients where in the event no claim for payment is possible due to delays in processing legal aid, so such an approach would not be a surprise.

The consultation supplies figures in page 6 relating to the increase in the number of such ‘large’ cases.  Again, the consultation fails to acknowledge that the decision to serve PPE is a matter for the prosecution, not the litigator.  The plan will not provide any incentive on the prosecution to properly review papers served.  Instead, it provides a perverse incentive to overload the defence with a large volume of material of borderline relevance, knowing that the litigator will struggle to have a properly staffed office to read it.  The prosecution choose whether to make these cases ‘PPE heavy’.

Fixed fees have always been ‘sold’ to the profession on the basis that there will be ‘swings and roundabouts’.  This is understood to mean that while there will be cases that will not be economically viable to undertake, this will be made up for by other cases that carry the ‘profit’ that permits a firm to continue to be viable.  Unfortunately, this would appear be another example of the Ministry seeking to remove the profitable cases and leaving the profession with those that are not economically viable.  This should be looked at in the context of the evidence the Ministry holds and the threat to financial viability set out at the start of this response.

Question 2

If not, do you propose a different threshold or other method of addressing the issue?  Please give reasons.

No.

Leave it as it is until you undertake the full review which should be carried out as soon as possible.

Question 3

Do you agree with the proposed capping of court appointees’ costs at legal aid rates?  Please give reasons.

No.

It seems likely that the bulk of defendant’s where there is a court appointed solicitor involved will have had legal aid refused.  Experience tells us that will be a small minority who choose not to seek representation, this will not be a significant number.

As a result, while firms would represent clients for legal aid fees were legal aid available, the bulk of these client would only be represented at private rates.  The reason why they are not represented is because they cannot afford private fees.

As a result the suggestion is objectionable for this reason – why should firms accept what is a private instruction by the court at legal aid rates, and not private rates?  The rates are higher because they reflect private fee levels which are many times higher than legal aid rates.  The Ministry will no doubt note that from the fees charged by firms it chooses to instruct.

This proposal (again) ignores the sensitive nature of the cases; the care needed in cross examination; that responsibility being discharged where a litigant in person will have actually prepared the case (or not); and the need of the courts to ensure that there is representation to permit these trials to proceed.

The proposal is likely to have the result that fewer advocates undertake the work, irrespective of the contractual clause – there will always be a good reason not to undertake such work at a loss – and there will be a knock on effect for the courts and vulnerable witnesses.

Once more, the suggested reform fails to take into account what is required of the advocate involved. For example, in a rural area the advocate might be some distance from the court centre.  He might have reserved a full day to cross examine three witnesses following a court appointment.  On arriving at court, the defendant (not his client) chooses to plead guilty when the witnesses attend.  This is out of the advocate’s control.  He will be paid 1 ½ hours travel at c.£25 per hour, some waiting, and for a brief attendance.  The advocate is unable to undertake further work for the rest of the day, and that day will be undertaken at a financial loss.  The current fees will make that loss less likely, and more enthusiasm will be found in experienced advocates who can undertake the work.

An alternative would be to bring the scheme within the ‘swings and roundabouts’ of the legal aid system proper by either:

• Removing the means test for cases identified as needing a ‘court appointment’ so that full representation can be provided. This doesn’t deal with defendants who choose not to have representation so may not be attractive.

• Alternatively, or in addition, pay tiered fees identical to those paid for trials under legal aid fees ie. category 2 fees, the level dependent upon work undertaken and submitted on CRM6.

In such cases they will be remunerated as if the client had received legal aid, is likely to enhance client choice and may be unarguable in terms of mechanism for payment.

Question 4

Do you have any comments on the Equalities Statement published alongside this consultation and/or any further data about protected characteristics we should consider?

Having considered the Impact Assessments we make the following points:

• We do not accept that the disparity in rates for court appointments and legal aid rates is ‘unfair’. It reflects private fee levels for a private appointment.

• As a result, this is not an historic anomaly but reflects the fact that court appointments are not ‘legal aid’ for a client, but a private instruction to protect a witness.

• The assessment fails to note that the witnesses themselves are likely to be affected stakeholders where trials cannot proceed due to a lack of advocate.

• The principal uncertainty, not properly identified, must be whether anyone will provide cross-examination at the proposed rates.

• The equalities assessment fails to acknowledge the witnesses as being a potentially affected class of person. It might be a generalisation, but it would seem correct to say that the likelihood is that the witness requiring protection will be female in many domestic violence cases.  As a result, anything likely to impact on witnesses in terms of whether a trial is effective and the expertise of those cross-examining at much reduced fees will impact more on women.  Of course, the Ministry will hold these figures so it is surprising that they weren’t mention.

• By definition, those who need representation as they are not fit to plead are likely to have the most severe mental health difficulties. I am not sure that their interests have been adequately considered.

• It is perhaps unbelievable that the effect on witnesses of these proposals is not mentioned, bearing in mind in relation to court appointments the whole reason is to protect them.

• All of the assessments are predicated on the believe that advocates will continue to accept instructions as before. They won’t.  Factor that in look again at the impacts to the courts, defendants and witnesses.

Any risks from either proposal can be mitigated by leaving things as they are.

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Senior Crown Court Litigator Laura Clarson recently worked with Nick Jones, a barrister from 5 St Andrew’s Hill Chambers, at Nottingham Crown Court to secure an acquittal for her client.

Serious Violent Offence at Nottingham Crown Court

Laura’s client was charged with another accused of causing grievous bodily harm with intent.  The allegation was that the complainant had been assaulted with a weapon, probably a bat, as a result of his unwanted attentions in relation to our client’s mother.

The injuries involved fractures to the complainant’s face.  Blood had been lost by the complainant.  It was the prosecution’s contention that this blood evidence could make a jury sure that Laura’s client had been one of those who took part in the attack.

A favourable outcome to the case was extremely important to her client, not least because the Sentencing Guidelines for this offence suggested that if convicted he could expect to receive a sentence that would start at 6 years in prison.

The case required careful preparation.  The witness had no recollection of the incident which led to his injuries.  They were of such severity, however, that he must have been subject to a serious assault.  Although Laura’s client was now asserting that he had not taken part in the assault, he had not told the truth to the police during the early stages of the investigation.

Expert Evidence

The Crown maintained that it’s expert analysis of the blood evidence was decisive and claimed that if would offer the jury no alternative but to conclude that Laura’s client had been involved.

As soon as the blood evidence was disclosed, Laura instructed a respected expert, Gillian Leak of Principal Forensic Service to provide a report on behalf of her client.

Despite early service of these conclusions and the seniority and experience of our expert the Crown proved intransigent in relation to the case.  There was resistance to an early conference between experts to find points of common ground.  It transpired during the course of these negotiations that the Crown expert had not been given the entirety of the Crown case in order to further review his findings.

Although it was clear to Laura in March 2016 that the Crown’s view of the blood evidence would be unsustainable at trial, the prosecution continued nonetheless.  Problems in the complainant’s case were highlighted during cross-examination.  Most importantly, the Crown expert conceded many points in our client’s favour during questioning.

Belatedly, the Crown saw reason dropped the case against Laura’s client half way through the trial at Nottingham Crown Court and he was found not guilty.  This was six months after Laura had served the evidence and made representations about the wisdom of the prosecution.

Contact Us

Crown Court cases are often complicated and steps will need to be taken to challenge what at first glance appears to be conclusive evidence.  Please contact Laura if you have a case before Nottingham Crown Court on 0115 9599550 or email her here.  Alternatively, find your closest office here.