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

apply.

  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 http://www.publications.parliament.uk/pa/ld200910/ldbills/003/10003.i-ii.html

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:
http://www.justice.gov.uk/publications/docs/defendant-costs-orders-rates.pdf

Another identification disaster

22 October 2009
It was almost too much to bear, sitting next to Terry Pinfold at the Court of Appeal this week when they turned down his final appeal against his one remaining 1978 robbery conviction.
Terry served this country in the Coldstream Guards for five years, seeing active service in Egypt, and leaving the army with the highest level of commendation.

By  1976 Terry was a stalwart figure in his local community – successful in business, happily married, with two lovely children.   His factory employed up to a dozen local women in Barking, and he was opening a gym and sports club.  He owned a share in another company manufacturing  life jackets.

But from 1976 onwards, robbery squad officers mounted a series of prosecutions against Terry, involving 18 counts of robbery, firearms and murder.  Terry fought two of these trials – involving robberies – without a lawyer and was acquitted by a jury.

But in 1978 Terry was convicted of  3 robberies, two of them bank robberies with firearms, on the basis of identification evidence and an alleged confession.

Let me say now – Terry is not a confessor.  As an old soldier he was well aware of the “name, rank and number” rule.

Terry miraculously succeeded in overturning the two bank robberies with firearms in 1981 when the Court of Appeal heard evidence that another man, George Bradshaw (aka Maxie Piggott)  – Terry’s doppelganger – had confessed to one of them.  This left him convicted – oddly – of the remaining robbery – stealing a getaway vehicle for one of the bank robberies he was acquitted of. The robber had worn a “false full-length Jewish beard”  Lord Justice Lane, not the kindest of judges, said the identification was particularly strong, but expressed strong doubts – verging on scorn – about the value of the oral confession.

But meanwhile, in 1980, Terry had been convicted of one murder, on the unsupported evidence of serial killer Bruce Childs whom Terry had briefly employed.  Childs implicated Terry almost as soon as George Bradshaw confessed to the charges Terry was in prison for.  Childs made his statement after meeting with Tony Lundy, the robbery squad officer who achieved notoriety in the early 1980s for his links with gangland figures.  In total Terry served 23 years in prison for the robberies and the murder.

Every single day of that 23 years was anguish as Terry proclaimed his innocence in every way possible.  It took three trips to the Court of Appeal  to get the murder conviction overturned.  His wife loyally supported him for the first 13 years until hope of the truth emerging  seemed to be extinguished.  From time to time the Home Secretary would increase his minimum term.

While Terry waited in prison for more than two decades for the truth to come out his children grew up, his wife divorced him, his health failed and his confidence in our society evaporated completely.

It was not until 2003 that an appeal against the murder conviction was overturned, thanks to Danny Simpson of Howells.  But Terry is now a tormented man.   He is deeply traumatised by his experience.

And he was  left with one robbery conviction.  Terry still rages against the illogicality of this single remaining case.  If another man (who strongly resembled Terry) had committed the bank robberies, where’s the logic in suggesting that Terry stole the getaway car?  This successful businessman, with so much to lose?  Who worked a 14 hour day in his own factory?

On further investigation it turned out, miraculously,  there were witnesses who remembered the circumstances of the 1976 ID parade where Terry was picked out.  They had been witnesses to one of the bank raids that Terry’s doppelganger had committed.  Not only had they helped the victim of the getaway car robbery make up a photofit, but the ID witnesses for both robberies (including the one of which Terry was subsequently cleared) went off to a restaurant together with a police officer for a meal and drinks before the ID parade!  The CCRC made no bones about it – back to the Court of Appeal we went, with Michael Mansfield QC representing Terry.

At last, we thought,  Terry’s name would finally be cleared.

But no.  On 20th October the Court of Appeal in 2009 made short work of the appeal. ID witnesses and police dining together?  No problem.  The confession – no reason to doubt its veracity despite the officer being tried for perverting the course of justice (acquitted) and dismissed on disciplinary charges.  The conviction was upheld.

The spectacle of today’s Court of Appeal delivering a judgment less respectful to elementary notions of fair process than Lord Justice Lane was shocking.  But Terry has seen it all before.

The fight will go on.  If anyone knows where to find George Bradshaw, alias Maxie Piggott, Terry’s lookalike, the 1970s robber, please let Jane Hickman know on 0207 702 5331.
Read more on this case by Simon Hattenstone in the Guardian:- http://www.guardian.co.uk/uk/2003/jul/14/ukcrime.prisonsandprobation