Fishy business over the pond

The Attorney General for Massachusetts has urged the US Congress to stop allowing the marine enforcement agency to keep proceeds of fines and forfeitures it imposes on fishermen.

Former Commerce Secretary Gary Locke  set up an investigation into the forfeiture activities of the National Oceanographic and Atmospheric Administration (NOAA).

His appointee, federal Inspector General Todd Zinser, found

“extensive waste, fraud and abuse by the agency. It also proved what fishermen have long suspected: allowing NOAA Fisheries to retain the proceeds from forfeitures, seizures, fines and penalties against fishermen gives the agency a perverse incentive to continue its abusive enforcement practices against fishermen. This conflict of interest must be eliminated.”

Congressman Barney Frank and Senator John Kerry have launched bills in Congress and Senate respectively to remove the NOAA access to seized funds.  Both bills would establish a formal process to reimburse fishermen and related businesses for legal fees incurred in successfully challenging enforcement penalties.

As any student of “freakonomics” will tell you, every economic incentive creates a perverse result.  Incentivising confiscation by sharing the proceeds with enforcement agencies has produced an international system of state-licensed banditry, in which the assets of innocent and guilty alike are meat for a hungry public sector.

The UK has many great examples of this.  Watch this spot.

Police misconduct dealt with firmly

On 20 July 2011 the Supreme Court gave its decision in the case of R v Maxwell, an unusual appeal following the decision of the Court of Appeal to quash the murder conviction of Maxwell and his brother.The conviction had been quashed due to appalling misconduct by police who – as often happens – had outsourced the taks of fitting up the defendant to a serving prisoner, Karl Chapman.  They had bribed Chapman with visits to a brothel, free drugs and large sums of money and then lied about this conduct at trial. When the CCRC brought the facts to light Maxwell mounted a successful appeal.In the meantime, it was said, Mr Maxwell had freely confessed to the murder. The matter ended up in the Supreme Court because the Court of Appeal ordered a retrial.  Counsel for Maxwell, Mr Patrick O’Connor, argued that it was offensive to justice to allow a retrial in such circumstances.

The Supreme Court refused to overrule the order for retrial, giving due weight to the public interest in protecting 85 year olds from aggravated burglaries.

An interesting nugget in their judgment was the apparent immunity of the guilty coppers.  Lord Dyson commented

“On the face of it, there is a strong case of conspiracy to pervert the course of justice and forgery. No explanation has been provided to the court as to why there have been no such disciplinary or criminal proceedings”.

Contrast this with the five officers sacked last week by Merseyside Police.  They had  snapped their own mugshots on a mobile phone “larking about” while searching a house,  one posing with a packet of Frosties, others with various household items.   For this heinous crime they were sacked without notice, earning a quick headline for the Deputy Chief Constable.

Much less bothersome than drawing attention to real police misconduct!

A vile conspiracy – criminal legal aid takes another hit

“A vile conspiracy” is the only way to describe the “reform” that is proposed to funding for murder cases contained in the Legal Aid and Sentencing Bill.

The impact which the proposed reduction will have on the resource available to the defendant is not explained in the Consultation Paper.

Taking a typical matter, with, say 2000 pages of prosecution material and a 6 week trial the fee for the defence solicitor will drop from £41,371.74   to £24,443.34.  If there is less prosecution material, with, say 500 pages of prosecution material and a 15 day trial, the present fee allowed is £21,268.98 .  This will drop under the proposal to £8,185.49, a reduction in the fee of over 60%.

As to how this could impact in practice, the police service of Derbyshire publishes figures in response to public requests for information.  One 2009 response showed a murder investigation into the death of Kadeem Blackwood costing £600,000.  Press reports state his trial lasted three weeks.

Assuming that the police served and relied on 500 pages of paper, a single solicitor will in future have to scrutinise the product of a £600,000 enquiry, set a strategy, instruct investigators and experts, and instruct counsel, for a sum which is insufficient to pay for more than 4 or 5 weeks work.

This contrasts with the apparent expenditure of approximately 7 man years per murder by the Metropolitan Police.

If there have to be defence legal aid cuts, why concentrate them on murders?  That is where the worst miscarriage of justices occur, and arguably where the state has most to hide.

Getting Justice from the Criminal Justice System

The American Recovery and Reinvestment Act of 2009 (Recovery Act) was signed into law by President Obama on February 17th, 2009. It is an unprecedented effort to jumpstart the US economy and to create or save millions of jobs.

Its will be felt across the US in every walk of life.  Of particular interest to those who toil in the CJS of England and Wales, the Act provides $2.7 billion to the Office of Justice Programs; $1 billion to the Community Oriented Policing Services (COPS) program; $225 million to the Office on Violence Against Women; and $10 million to the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Compare that with the scale of the cuts heading towards us on this side of the Atlantic.  The Criminal Justice System – the bit that gives us due process and fair trials – is barely coping, and the 25% cuts are yet to be announced.  The wheels of justice are about to grind to a halt.

Maybe time to take another leaf from the US book.

The Cost of Prison Sentences

In Missouri a judge is now told the cost of the sentence he proposes to pass.   The New York Times lists the kind of figures  a judge is given:

“a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690”.

Clearly they spend even less on a prisoner in Missouri than in England and Wales (here the cost is £45,000 a year or £900 a week).

Second degree robbery is robbing someone with intimidation but without a weapon.   The sentence here would probably be similar and if served in full would cost £225,000, or £135,000 if the prisoner got out after three years.

Apparently the information is having a big impact on imprisonment rates in Missouri, as it should.   In the absence of clear evidence that a prison sentence is necessary for public protection or is capable of making a difference no public servant would think of spending this kind of money just to send a political message.

It also puts the cost of proper representation (the fee to a solicitor for preparing a 3 day robbery trial in the Crown Court dropped in 2008 to a laughable £1700) into its proper context.   One wrongful conviction in in 100 cases is uneconomic.  Its also a human tragedy.

Selection for prosecution is a disgrace to our legal system

New Labour pushed risk based regulation to the top of the government agenda. Regulation represented a measure of state intervention in all manner of commercial affairs which cost little and could produce big results.

In 1998 its Better Regulation Task Force set out the five principles with which all regulation should


  1. Transparent
  2. Accountable
  3. Proportionate
  4. Consistent and
  5. Targeted – only at cases where action is needed

As usual, the Labour government was slow to engage, its Prince Hamlet complex at work in every area of reform.  Criticism grew and was taken up by the Conservative party in its unsuccessful election campaign in 2005.

The Hampton Report in 2005 set out further principles for regulatory inspection and enforcement, calling for regulation to be more targeted and less burdensome for both regulator and regulated.

Eventually the mouse emerged from under the sofa with the underwhelming Regulatory Enforcement and Sanctions Act 2008 setting out the principles first enunciated a decade before:

(a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent;

(b) regulatory activities should be targeted only at cases in which action is needed”

But the Act failed to rationalise the way in which prosecutiorial powers were exercised.  By 2008 an extraordinary patchwork of regulatory agencies had gained powers to prosecute. Tory criticism and media complaints intensified.

In 2009 the MOJ and BERR agreed that the Law Commission should undertake a project

  • To introduce rationality and principle into the structure of the criminal law, especially when it is employed against business enterprises. In particular, this will involve the provision of non-statutory guidance to all Government departments on the grounds for creating criminal offences, and on what shape those offences should take
  • To consider whether there should be created a statutory power for the courts to apply a ‘due diligence’ defence (the burden of proof beingon the accused) to a criminal offence.

Some but not all of these problems are now addressed in the Law Commission’s Consultation Paper.  The rationalisation it recommends is covered elsewhere.  But the question we ask is whether the Consultation should not now extend to all criminal offences and not just those in the regulatory sector.

In the UK there is no general restraint on the selection of who to investigate and prosecute – unlike in the US.  There the Equal Protection and Due Process Act bars not only discriminatory but also irrational selection for prosecution.  A growing number of entirely mercenary prosecutions undertaken to maximise prosecutorial income under the Proceeds of Crime Act are a disgrace to our legal system.

The time has come for prosecution generally to be brought under principled control.

Criminal Prosecutions in Regulatory Contexts

The Law Commission has just published Consultation Paper 195 “Criminal Liability in Regulatory Contexts”.

It reflects the extraordinary proliferation of criminal law in the last 20 years, spreading into every nook and cranny of civil society.

“Halsbury’s Statutes of England and Wales14 has four volumes devoted to criminal laws that (however old they may be) are still currently in force. Volume 1 covers the offences created in the 637 years between 1351 and 1988. Volume 1 is 1382 pages long. Volumes 2 to 4 cover the offences created in the 19 years between 1989 and 2008. Volumes 2 to 4 are no less than 3746 pages long. So, more than 2 and a half times as many pages were needed in Halsbury’s Statutes to cover offences created in the 19 years between 1989 and 2008 than were needed to cover the offences created in the 637 years prior to that”.

Hundreds of bodies now have powers to prosecute, and to conduct the associated financial investigations which POCA encourages.  An unlucky few will be selected for prosecution each year, often not pour encourager les autres, but to fill the coffers of the state.

The Law Commission has published its proposals for reform, envisioning greater rationality in the use of these powers.  It has come up with some sensible and rational proposals which would limit prosecution in a regulatory context to those cases where someone has done something seriously wrong, and make sense of the often confusing liabilities of the corporate body and its liabilities.

The last government let approximately a third of Law Commission recommendations pass without action.  Hopefully the coalition government will do better.


Prosecutor disciplined for non-disclosure

In San Francisco a former Santa Clara County prosecutor Ben Field lost his licence to practice for four years when it turned out he had failed to give proper disclosure in a series of criminal cases.  Last week he took his fight to clear his disciplinary record to a State Bar of California appellate panel.  Unfortunate move, it turns out as the judges sent a strong signal that  his four-year suspension for misconduct may not be harsh enough.

During an hour long hearing, Field’s lawyer, Allen Ruby, encountered generally hostile questioning from the three-judge appellate review panel.   At least two of the judges, Presiding Judge Joann Remke and Judge Judith Epstein, grilled State Bar prosecutor Donald Steedman on why his office didn’t seek to permanently strip Field of his law license, given the argument at trial that he’d repeatedly violated ethical rules and the constitutional rights of defendants in criminal cases.

Its a shame that our regulators lack the cojones to adopt similar measures here. How many times can the prosecution simply fail to hand over glaringly obvious relevant material before one gets knocked down?

UK Bribery Act is coming

The Queen announced the birth of a new bribery and corruption bill in her speech on Wednesday.   Doing business corruptly would carry a 10 year sentence if the bill succeeds – though it may be a big “if” unless the Conservatives support it.

The bill is admirably simple –  defining bribery by its objective of “improperly performing a relevant function”…. Guess we’ll know what that means when we see it?

It forbids  anyone from offering, promising or giving a bribe, as well as accepting, soliciting or agreeing to receive an illicit payment. Its provisions cover foreign public officials without the current get-out for nations which sanction or solicit such payments  at the very top.

Prosecuting  companies and senior management will be far easier where bribes have been offered, paid or received.  Companies will be exposed to prosecution for failed policies, systems and controls.  A new class of operational risks is born!

The new legislation will reach even further than the Amercian  Foreign Corrupt Practices Act, because it covers deals struck between businesses as well as with governmental bodies.

The bill can be viewed on

Cap on costs in criminal cases

From 31st October, a defendant who is acquitted will no longer be reimbursed his full legal costs.
New rules have just been published by the Ministry of Justice, capping the repayment of legal costs at £52.50 an hour in the magistrates court, £53 an hour in the Court of Appeal and varying rates in the Crown Court.

Hickman & Rose had responded to an earlier consultation on this change by arguing that the new rules were fundamentally unfair.   Many other respondents argued in similar terms that the reform is a disgrace to a country which has hitherto (at least in formal terms) paid due respect to the presumption of innocence.  These warnings have been ignored.

No matter how malicious, unfounded or improper a prosecution, the successful defendant who pays for his own defence will now be left facing finanical ruin in a complex case.

Details are to be found on the Ministry of Justice website: