A judge should not continue to try a case alone, after discharging the jury because of jury tampering, where an ‘informed objective bystander’ might legitimately conclude that there was a real possibility of bias by the judge. So held the Court of Appeal (Criminal Division) in a judgement given on 17 November, allowing an appeal by a defendant known only as KS under section 47 of the Criminal Justice Act 2003. The appeal was against an order made by a crown court judge, during the appellant’s trial for money-laundering offences, to discharge the jury under section 46 of that Act because of jury tampering, and continue as a judge-alone trial.

The defendant was alleged to have been involved in a very substantial VAT “carousel” fraud and the arrangements made for laundering the proceeds. His was the tenth trial in which different aspects of the fraud, and the roles of numerous different individuals, were examined. Many of them were convicted. Following conviction, sentences were imposed, and confiscation proceedings conducted. Judge A presided over all these trials and post trial hearings. In the first of this group of trials the Crown alleged that the appellant was one of those directly involved in the conspiracy to defraud with particular responsibility for laundering the proceeds. He was acquitted of conspiracy to cheat the Revenue and of one count of money laundering and the jury was unable to agree verdicts on two counts of money laundering. The Crown proceeded to a fresh trial of the appellant on substantive counts, adding two further similar counts to the indictment. After the jury had retired, the judge concluded that tampering had taken place and ordered the jury to be discharged. He found that it would be fair to the defendant for the trial to continue without a jury, and ordered accordingly.

Delivering the judgment of the court, the Lord Chief Justice, Lord Judge, said that it was an unusual and indeed an extreme case. By the time this tenth trial was coming to an end Judge A was inevitably aware of a vast body of information affecting their client of which the defence would have been ignorant and which therefore would not have been addressed in the present trial. “Everyone of those identified in the counts in the present indictment were said to have been jointly involved with the appellant. Each of them was convicted in trials over which Judge A had presided. Some of his observations about the appellant himself in the course of his sentencing remarks were specific to and critical of the appellant. None of these considerations, even taken together, prevented him acting as the trial judge when the jury was vested with the responsibility for the verdict. However taking them together, and examining them in their overall context, we have concluded that the objective bystander, considering the question which arose when the judge himself became responsible for the verdict, would be left with precisely the same concerns articulated by the judge in the course of the argument and which, in the result, he was persuaded with some hesitation to set aside…For these reasons this appeal will be allowed.”.

In an interesting postscript, the judgement concluded that “the layout of X Crown Court, and the opportunities for smoking available for those who wish to smoke, are unsatisfactory. They must be reconsidered, at any rate in relation to trials lasting more than a day or two, so as to avoid the inevitable risk of jury contamination where jurors and members of the public congregate together to have a smoke”. The full text of the judgement can be found at:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/2377.html

Solicitors who provide legal aid services are among the worst paid in the public sector according to a recent survey. The average salary of a legal aid solicitor is £25,000, less than a prison officer or sewage plant worker. It is also well below police officer, nurse and secondary school teacher according to figures compiled by the Guardian newspaper and published by the Law Society.

In light of the recent Ministry of Justice consultation – that plans to slash fees for legal aid – the Law Society says ‘enough is enough’. Chief Executive Desmond Hudson said: “There is no scope left for cutting fees. These figures show that solicitors undertaking legal aid earn well below the average for professional salaries, and considering solicitors can amass significant student debts and work very long hours, the pay is very far from fat cat territory.” The Law Society believes any cuts to “this thread-bare system” will see firms no longer able to undertake this work, civil provision in mixed practices being hit, and the most vulnerable clients unable to obtain the assistance they need.

The Law Society has just published its response to the Ministry of Justice ‘Legal Aid Funding Reforms’ consultation. It states that the proposal to pay for committal hearings under a fixed fee in the Crown Court “is a fundamental misconception in the paper, that work conducted in the magistrates’ court is being ‘duplicated’ in the Crown Court”. In a scathing critique of the Advocates Graduated Fee Scheme, the Law Society say that, after the stagnation of criminal legal aid rates from April1994 to 2001, the LSC encouraged practitioners to sign up to a new contracting regime that promised a partnership between Government and the profession that could provide the necessary defence services that underpin a fair adversarial system of justice. “Since then, in contradiction to the promises, more and more cuts have been instigated. Whilst claiming to be done in the name of efficiency, these cuts have become nothing more than cynical brinkmanship: the only measure of policy that the Government recognises is whether there are enough survivors to provide the service”.

The Law Society say it is clear that, whilst practitioners continue to try to do their best for their clients, the recent seemingly relentless swathe of cuts to fees at all levels of work has left many of them with no choice but to undertake the minimum work possible within acceptable levels. “Clearly if cuts to police station fees leave practitioners with no choice but to spend less time in the police station, this is likely to lead to more people being charged, and more people being remanded in custody, thus causing further burden to the already overstretched prison population”. Their conclusion is that Criminal defence lawyers have become beleaguered and demoralised. “This fact will ultimately lead to profound damage to the future of defence services. Unlike any other part of the legal aid community criminal practitioners provide a 24 hour service to the community every day of the year… The current proposals for Crime risk cutting legal aid provision to a bare minimum that will see firms no longer able to undertake this work”.

The full text of the Law Society’s response can be found at the extremely long web address:

http://www.lawsociety.org.uk/secure/file/182408/e:/teamsite-deployed/documents/templatedata/Internet%20Documents/Non-government%20proposals/Documents/lsresp_fundingreforms_091105.pdf

Following widespread concern about the use of cautions to deal with violent offenders, justice secretary Jack Straw has this week announced a review into the way in which cautions, formal warnings and on the spot fines are used, and their impact on the courts in England and Wales. The review will also look at the use of fixed penalty notices. It will be carried out by the Office for Criminal Justice Reform, a cross-departmental team supporting all criminal justice agencies, and involve HM Inspectorate of Constabulary and the Crown Prosecution Service.  

 

According to ‘The Times’, half of all criminal cases in England and Wales are punished out of court. Last year up to 40,000 cases of assault were dealt with by a caution despite guidelines that say they should not normally be used for violent or sexual offences. Jack Straw told BBC Radio 4’s The World at One programme that “the guidance about cautioning is actually very clear. It says a simple caution should be used for low-level offending. Only in exceptional circumstances should it be used to deal with more serious offences…What we are going to look at is how that guidance is properly applied.” Asked if no violent offence more serious than common assault would in future be dealt with out of court, he said “that is basically the way the system is supposed to operate at the moment and we will certainly be looking very clearly at that.” The justice secretary went on to deny that the Government had encouraged the use of cautions and fixed-penalty notices to ease the pressure on overcrowded jails. He said that in most cases the offences being dealt with by the penalties would not previously have led to any police action.

The justice secretary’s concerns are shared by the DPP and by Britain’s leading policeman, as reported respectively in ‘The Times’ and the ‘Sunday Times’. Keir Starmer said that while there was a proper place for trivial offences to be dealt with outside the courts, the system had developed in an incoherent way and needed to be looked at again. “My view is there should be a structured, tiered approach which specifies what case will be dealt with at what level — and will be transparent.” Sir Paul Stephenson said that attempts to reduce pressure on courts and prisons meant that the police are expected to assume a criminal justice role. “The outcome of that has been an almost uncontrollable increase in cautions, and the introduction of the fixed penalty ticket, which in the public’s mind equates to a parking ticket”, and should not be used for “theft and thuggery”.

According to statistics published in the ‘Guardian’, a total of 2.2 million people were cautioned between 2000 and 2008, including more than 550,000 who were given repeat cautions. And as Marcel Berlins points out in the same newspaper, the police are issuing more cautions and fixed penalties “to offenders who, two or three years ago, would have had to stand trial and be legally represented”.

The Advisory Council on the Misuse of Drugs (ACMD) is an independent expert body that advises government on drug related issues in the UK. It was established under the Misuse of Drugs Act 1971. Its terms of reference, set out in section 1 of the Act, are “to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem, and to give to any one or more of the Ministers…advice on measures (whether or not involving alteration of the law) which in the opinion of the Council…ought to be taken”.

Blog ‘Drug classification’, posted on 23 February, asked why ministers ignore the Council’s major recommendations. The ACMD had recommended that “after a most careful scrutiny of the totality of the available evidence… cannabis should remain a Class C substance.” The government dismissed this advice and reclassified cannabis as a Class B drug. The Council recommended that “in reviewing the evidence of the harmfulness of MDMA (ecstasy) to individuals and society, the Council’s collective view is that the balance of harms most closely equates to that of other substances in Class B.” The then Home Secretary Jacqui Smith vetoed the proposed downgrading.

The simmering discontent engendered by this cavalier treatment of scientific evidence and advice has now erupted with Alan Johnson’s summary sacking of the chairman of the Council, David Nutt. Professor Nutt’s crime was to write a paper for the Centre for Crime and Justice Studies, based on a lecture he had delivered in July, in which he repeated his argument that the relative harms of legal drugs such as alcohol and tobacco are greater than those of a number of illegal drugs, including cannabis, LSD and ecstasy. Professor Nutt proposes a ‘drug harm ranking’, which compares the harms caused by legal as well as illegal drugs. Alan Johnson took exception to this, and, in a letter to the ‘Guardian’, said that “Professor Nutt was not sacked for his views, which I respect but disagree with…He was asked to go because he cannot be both a government adviser and a campaigner against government policy”. Writing in ‘The Observer’ after his sacking, Professor Nutt said that “having the temerity to challenge government decisions on drug classification was more than this government could bear”.

In 2002 cannabis was downgraded to class C by Home Secretary David Blunkett on the recommendation of the Council. Gordon Brown let it be known when he became Prime Minister in 2007 that he intended to return the classification of cannabis to the position before 2002. After the ACMD pointed out that he was in breach of the Act by not consulting them he was forced to call for another review, promptly rejecting their findings when the Council reported. This is more than a political spat. Penalties for class B drug offences are draconian. As Professor Nutt says “possession of a single joint can now lead to five years imprisonment, a wholly disproportionate penalty for a drug…which is significantly less harmful than alcohol”. All this at a time when, to quote a ‘Guardian’ editorial, “half the government, as well as the Conservative leader and three US presidents in a row have used drugs in their own youth”.

This story will run, with the possible mass resignation of the remaining members of the Council, following the two members who have already resigned. The government has already announced a review, to be carried out by Sir David Omand, of the effectiveness of the ACMD.

The full text of Professor Nutt’s paper, appropriately entitled “Estimating drug harms: a risky business?”, can be found at:

http://www.crimeandjustice.org.uk/opus1714/Estimating_drug_harms.pdf