MAY 2012 NUMBER 69

LondonAdvocate LondonAdvocate
The newsletter of the London Criminal Courts Solicitors Association

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Editorial LCCSA Notices and News Greg Powell Retires from Committee Presidents Report Interview: HHJ Radford Serving Justice? Academic Analysis of Stop Delaying Justice! Its All Greek to Me: the Interpreter Debacle Law Report Book Review Letter to the Advocate Knowledge of Guilt

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Editorial

What I hope will be a sunny June will set the scene for the Jubilee celebrations meaning a well-deserved extra holiday for our members and the courts. The Jubilee will, once again, demonstrate how special London is in the life of the UK and how different it is from every other major city in the country. This also applies to its lawyers, who have to travel long distances between well-scattered offices, widely-spread courts and several prisons. Compensation for their time and trouble is now a thing of the past and yet our lawyers still struggle on, remunerated less well, working harder and having to cope with one initiative or innovation after another. Our major articles in this issue ponder on the incompetence behind two recent debacles the video training for "Stop delaying justice!", analysed for us by eminent academic, Jenny McEwan, and the chaos which has resulted from the MoJ's attempt to save money for the services of interpreters, described by Rebecca Niblock, a committee member with day-to-day
PRESIDENT Jim Meyer Tuckers Solicitors 39 Warren Street London W1P 5PD DX 123596 Regents Park 3 T 020 7388 8333 E meyerj@ tuckerssolicitors.com PAST PRESIDENT Malcolm Duxbury Victor Lissack Roscoe & Coleman 70 Marylebone Lane London W1U 2PQ DX 9020 West End T 020 7487 2505 E malcolmduxbury@ victorlissack.co.uk VICE-PRESIDENT Akhtar Ahmad ABV Solicitors Union House 23 Clayton Road Hayes UB3 1AN DX 44650 Hayes (Middx) T 08445 879996 E akhtar.ahmad@ abvsolicitors.co.uk JUNIOR VICE-PRESIDENT AND EDITOR OF THE ADVOCATE Nicola Hill Kingsley Napley Knights Quarter 14 St Johns Lane London EC1M 4AJ DX 22 London/ChanceryLane T 020 7814 1200 E nhill@kingsleynapley.co.uk TRAINING OFFICER Jonathan Black BSB Solicitors 5-7 Euston Road London NW1 2SA DX 37905 Kings Cross T 020 7847 3456 E jonathanb@bsblaw.co.uk

experience of what has been going on at Westminster magistrates'court. One of the doughtiest fighters in the LCCSA's cause and a much-needed voice of reason in the debates over the past few years has announced his retirement. It is difficult for members to imagine what the association will be like without the tireless efforts, incisive intelligence and wry humour which we have enjoyed from executive officer and past president, Greg Powell. To say that we shall miss him is an understatement. This issue carries tributes to him, both from our current president, Jim Meyer, and a past president, Paul Harris. Our immediate past president, Malcolm Duxbury, has also been busy, interviewing HHJ Radford about current developments at Snaresbrook Crown Court: as ever, our work goes on! Nicola Hill Kingsley Napley
SECRETARY Melanie Stooks TV Edwards LLP Park House 29 Mile End Road London E1 4TP DX 300700 Tower Hamlets T 020 7790 7000 E melanie.stooks@ tvedwards.com TREASURER Anil Rajani IBB Solicitors Capital Court 30 Windsor Street Uxbridge UB8 1AB DX 45105 Uxbridge T 08456 381381 E anil.rajani@ibblaw.co.uk SUB/COMMISSIONING EDITOR Gwyn Morgan Max Findlay Associates T 020 8870 0466 E gwynmorgan@ maxfindlay.com ADMINISTRATOR Sandra Dawson PO Box 6314 London N1 ODL DX 122249 Upper Islington T 020 7837 0069 E sandra@admin4u.org.uk LCCSA WEBSITE www.lccsa.org.uk

MAY 2012

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LCCSA Notices and News

More news on the website: www.lccsa.org.uk Follow us on Facebook Twitter LinkedIn ANNUAL DINNER
The assocation's annual dinner will take place on 6 July 2012 at the Sheraton Park Lane hotel, Piccadilly. The after-dinner speech will be given by Jim Sturman QC.

LIFE MEMBERSHIP
It is with great regret that the LCCSA has been told that Greg Powell is to retire as executive officer, after an unrivalled period of service to the association. He has been made an honorary life member of the LCCSA.

AUTUMN CONFERENCE
The LCCSA European conference will take place in Malaga, from 12-14 October 2012. The principal speaker will be Anthony Edwards.

CONSULTATION EXERCISES
In recent months, the LCCSA has submitted responses as part of consultation processes by the Sentencing Council, on the introduction of guidelines for dangerous dogs offences, and by the Home Office on forced marriages. The consultation exercise on dangerous dogs will lead to the timely provision of a sentencing framework for offences which are at present very topical and for which no guidelines have previously existed. The consultation on forced marriages is far more controversial as the government seeks to criminalise an act which has, to date, only been subject to civil enforcement. At the end of March, the Ministry of Justice announced a major consultation initiative focusing on toughening community penalties and reforming the probation service. The LCCSA sentencing subcommittee will meet to draft a response and, as ever, input from members would be most welcome. Also, it is not too late to participate in preparing the association's response to the proposals to create tougher sentences and controls on the importation and supply of firearms. Any member wishing to play a part in this process should contact Tony Meisels: tmeisels@lewisnedas.co.uk

ACCREDITATION
The LCCSA and the School of Law at Swansea University are collaborating to provide association members with accreditation as court duty solicitors and police station representatives. Fees will be reduced by 20% for LCCSA members. There will be monthly assessments in London at Charter Chambers. These will cover critical incidents tests, interviewing and advocacy assessments and the written examinations. The dates for assessment in London for the next three months are 21 and22 May, 11 and 12 June, and 3 and 4 July.

COMMITTEE MEETINGS
These meetings are held monthly, on Monday evenings. The next three meetings are on 14 May, 11 June and 9 July. The venue is the offices of Kingsley Napley and meetings start at 6.30pm. All members are welcome to attend.

EXTRADITION ROTA
Jonathan Black and Rebecca Niblock have been working on behalf of the LCCSA to improve the position for those facing extradition. Jonathan has been in correspondence with Howard Riddle, the senior district judge, about the need for a rota of specialist extradition lawyers to work as duty solicitors in Westminster magistrates' court, which has to deal with around 1700 extradition cases per year. Howard Riddle agrees that there is a need for such a rota and the idea has been proposed to the Legal Services Commission.

LECTURE
Lord Justice Hooper is to give a lecture, entitled Half a Century of Crime a Valedictory Summing Up, at Inner Temple Hall at 6.30pm on Monday 18 June. All information on training events can be found on the LCCSA website: www.lccsa.org.uk

APPLYING FOR MEMBERSHIP

It is now much easier to join the LCCSA. Those enrolled as solicitors no longer need to be nominated and seconded: a simple application to the administrator will be all that is necessary. Those applying to become associate members will need just one person to nominate them, instead of two. This change is with immediate effect. MAY 2012

OLYMPIC DATES
Many courts will be operating different hours from usual during the course of the Olympic games. For full details, please see the LCCSA website: www.lccsa.org.uk

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MORE ROLES FOR CROWN PROSECUTION SERVICE
As from 1 April, the CPS has taken on the prosecuting functions of both the Department of Health and the Department of Work and Pensions. The work transferred includes the prosecution of benefit fraud offences by the DWP and some local authorities. This means that the CPS workload is likely to increase by around 1,100 cases per year, doing work which was previously done, in the main, by solicitors' firms.

COMPLIANCE COURTS
Southwark Crown Court is now running two Compliance Courts, on Tuesdays and Fridays at 3.30pm, which may be notified if any order is not complied with by the CPS. Although CPS representatives will be obliged to attend, defence solicitors will not have to do so. This innovation should limit requests for "mentions". For more information, contact the Court's temporary case progression officer, Gruffydd Waldron, on 020 7522 7268 or the listing officer at Eileen.mccauley@hmcts.gsi.gov.uk

Greg Powell
Greg Powell, who has served on the association's committee as executive officer, has retired To a large extent, Greg has been the life and soul of the LCCSA for many years. He has served on the committee in a number of roles, including vice president and president, and has been the executive officer for the last four years. The association and indeed the profession is hugely indebted to Greg for the work that he has done. He has represented the LCCSA in a number of different forums, including regular meetings with the Legal Services Commission, the Ministry of Justice and the Law Society. He has also been our voice in many cross-agency discussions on recent initiatives, such as "virtual courts" and litigator fee schemes. Greg is the master of both the written and spoken word. He has prepared detailed and highly articulate responses as part of many consultation processes. He has regularly lectured to members on the wave of legal aid changes that we have had to endure; and his lectures are always informative, original and humorous. The association has been lucky to have Greg as an advocate of its interests. He has never been shy at meetings (in particular with the Commission) to expose the flaws in new proposals through carefully reasoned and well informed arguments. There have been occasions when it has been necessary to say it as it is; and Greg has always been willing and prepared to do so, cutting through the flannel, bureaucracy, weak excuses and management-speak that we have to listen to as some agency or other explains why another initiative has gone wrong or caused the defence unnecessary loss and inconvenience. Greg is greatly respected throughout the profession and is highly regarded by all the other agencies that we have to deal with. He has helped, worked with and encouraged many of the LCCSA's leaders, giving up much of his own time on behalf of the association. His contributions and witticisms will be missed at committee meetings. We know it will be hard for him without us(!) We hope to continue to see Greg at our events and conferences and again thank him and, indeed, his firm for such outstanding long-term work and support of this association. Paul Harris Edward Fail Bradshaw & Waterson

Presidents Report
This is my third report as president and I cant help but wonder where the time has gone. I hope that readers visit www.lccsa.org.uk on a daily basis to keep abreast of developments affecting criminal solicitors since February, nearly 800 news articles have been posted! Notable stories include: the new silks list and the absence of any solicitors; the AGs acceptance (finally) that extradition reforms are on the cards, and in particular the one-sided US extradition treaty; the concessions gained during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, despite Ken Clarkes pithy were taking legal aid away from lawyers comment; the court clerk who turned to Google to fill the interpreting gap created by the new central contract for courtroom interpreter services (the MAY 2012

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MoJ must surely win the prize for the understatement of year when it described the chaos as teething problems); the 1,000 milestone for people jailed as a result of the riots; the agreement reached on the model of the quality assurance for advocates (QASA) scheme under which all advocates who undertake Crown Court trials will have their performance assessed live in court by a judge. practitioners will receive the same fee, regardless of the format of served documentary evidence.

Abolition of committal fees

Notwithstanding the tremendous efforts of the Law Society, Paul Harris and David Sonn, the profession has lost its challenge in relation to the decision to abolish the 318 committal fee. Despite hearing that defendants are being left unrepresented in magistrates courts, Lord Justice Burton and Mr Justice Treacy adopted almost wholesale the Lord Chancellors argument. This decision reinforces the urgent need for an independent assessment of the impact of the governments cuts to legal aid. I echo the House of Commons Public Accounts Committees complaint that the government has not identified the behaviour changes which may arise from the new legal aid arrangements, and urge it to do so.

Greg Powell
It is with much sadness that I report the retirement of Greg from the committee and as the associations executive officer. He has represented the interests of the capitals criminal solicitors well and will be sorely missed. I know everyone will join me in thanking him for his tremendous efforts over many years. Fear not, however: if you practise in London you will almost certainly bump in to him at court or the police station, and, if youre really lucky, he may regale you with one of his favourite poems!

Criminal Procedure Rules

The Law Society has revised its practice note on the CPR 2011 in the light of the Court of Appeals decision to uphold a wasted costs order against a Buckinghamshire firm arising from its failure to serve an application in opposition to a hearsay notice (R v SVS Solicitors [2012] EWCA Crim 319). This is essential reading for all practitioners.

Criminal justice efficiency programme (T3)

Most police forces are now transferring the majority of their case information to the CPS electronically, and magistrates courts are apparently ready to receive digital case files from the CPS. Crown Courts hope to achieve this capability later in the year. A number of issues are yet to be resolved to ensure effective participation by the defence; but much progress has been made. Over the years, I have been part of various working groups and committees, but the determination and genuine resolve by the various stakeholders working on this programme stands out. Whilst the issue of financial assistance and the capital investment required remains live (the first years cost to my firm alone would be an estimated 163,000, with recurring yearly expenditure of 33,000 thereafter), some of the other main obstacles have been removed: A new Prison Service Instruction provides central authorisation to allow the use of sound recording devices and laptops, even if fitted with a webcam and WiFi enabled. ACPO has issued guidance so that the presumption is that a solicitor can retain and use their mobile, electronic communication or recording device, including laptops when in the secure custody area and during private consultations with detainees. The relevant funding order has been amended so that MAY 2012

Upcoming events
I hope you will all join the committee at the associations annual dinner at the Sheraton Park Lane hotel on 6 July, even if its just to watch me make a spectacle of myself as I fumble through my speech! The dinner is always excellent value and provides a unique opportunity for members to network with colleagues and the judiciary. This years European conference (12-14 October) is also a must, and Malaga has an elegance and history which is sure to add to the occasion. Tony Edwards (from TV Edwards) will be updating delegates on changes to criminal law and practice and Jeffrey Smele (from Simons Muirhead & Burton) will present a seminar on dealing with defamation, privacy and contempt issues in the internet age. As with the annual dinner, this weekend provides an excellent networking opportunity, giving you the chance to mingle with colleagues in a relaxed and informal environment. You will also earn five CPD points into the bargain! Jim Meyer Tuckers Solicitors

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Interview with David Radford

HHJ Radford is resident judge at Snaresbrook Crown Court. He spoke to Malcolm Duxbury. Q: Have you been having any difficulties with interpreters recently? A: Yes, most certainly. In this building, we have been badly affected by the change to one contractor and Ive ensured that the difficulties have been communicated to the senior presiding judge and to the management of the courts and tribunals service. Indeed, I have personally spoken about them to Lord Justice Goldring. The change was piloted, I understand, on one circuit, the Northern circuit, and it was thought that the change would not be problematical but they didnt sufficiently have in mind the whole country. It was introduced without the full board approval of Her Majestys Courts and Tribunals Service, including the judicial representatives. I believe the contract is now being monitored on a weekly basis. Q: How highly do you rate the quality of the advocates who come before you? Would you like to be a judge taking part in QASA assessments during hearings? A: In general terms, advocates vary from the very good to the poor. This is across both sides of the profession, solicitors and barristers, employed and independent. Judicial evaluation has been agreed between the professions and the monitoring group and I think the advisory group under Lord Justice Thomas. I dont know that the Council for Circuit Judges has indicated any collective view so that remains outstanding. The way in which the scheme is now going to be structured, with categories 3 and 4 essentially those that are going to be monitored in the Crown Court and affecting all advocates, may mean that some of the concerns that some circuit judges had may be ameliorated. Certainly, with the CPS grading exercise, one of the concerns we had was that the employed advocates for the CPS were not being assessed but only the self-employed, and we believed it should be a level playing field. I hope, if the forms are not too onerous, that, given that this is something the regulators require to be done, colleagues will agree to take part. I wouldnt say that Im enthusiastic about another thing to do but I recognise that, obviously, we are the consumers of advocacy in the Crown Court the jury are the principal consumers but we also are and its in our interests to maintain and indeed improve standards and, if we can find some fair and objective basis for doing that which involves our participation, we should

co-operate; but I cant guarantee that all my colleagues on the circuit bench would share that view. Q: Does Snaresbrook have the largest number of courts under the care of one resident judge? What are the problems you encounter? A: Theres always been an argument between Liverpool and Snaresbrook as to which is the largest court. Liverpool may have more Crown Court rooms than we do but, if you were to ask how many, over the year, were occupied with work, I think you would find there were more in Snaresbrook: we normally have 19 courts, occasionally 20. We certainly have problems with the fabric and maintenance of the building, which began life as an orphanage and a school. And the way in which the place is set out in terms of new technology videolink, remote rooms for witnesses has had to be done in a building which was not purpose-built. But were blessed with being in pleasant surroundings, with the lake and all the rest of it. There are rumours of ghosts wandering the corridors on dark afternoons, of boys who met unhappy deaths when they were boarders here in the nineteenth century; but I think these are stories told to frighten new ushers. Q: What problems may arise when the courts work in a paper-free environment? A: Its a question of whether it happens. I certainly think that getting to that point is going to be problematical because Im not sure that well be able MAY 2012

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to operate without paper unless everybody has the necessary equipment on both sides of the court and on the bench. But, even so, I wonder what will happen to the papers that are not in the CPS core bundle. It will be a burden to the courts service to have to print out papers which previously had been supplied by the CPS. Given the financial situation and the staff situation, I dont welcome that. Q: What are your views on schemes to reduce cracked and ineffective trials? A: I think the guilty plea scheme may help. Ive certainly been impressed with the apparent results from other courts, including Liverpool and Birmingham. Im not in any sense averse to seeing how far we can improve matters in relation to London. What we want to eliminate is delay and misunderstanding. Sometimes people dont plead guilty because they may have a misapprehension as to what that involves in terms of sentence and, if that mystery can be dissipated, consistent with people making a free choice as to what they wish to do, that would help. And we dont want witnesses having to come unnecessarily to court. Obviously in terms of early guilty pleas, the focus has mainly been on the extent of the plea credit which can be obtained and eliminating the misunderstanding about that. There is some debate as to how the first reasonable opportunity is understood. I would welcome anything from the Court of Appeal to clarify that. Some are saying its when being interviewed at the police station; others are saying it cant be before the charges are named. How on earth can you indicate guilt in court terms when you are not yet faced with the charge that is being brought to court? There is the distinction between the credit you should get because you are not wasting resources and the time of the court, if you plead guilty at the first reasonable opportunity, and the second, an element of mitigation, not part of the sentencing council guidance, which is if there is confession, contrition and remorse shown at an early stage. Q: Do you think that too many minor cases are being heard in the Crown Court? A: Sometimes, yes, I think people may elect trial and then they plead guilty in the Crown Court when they could have pleaded guilty in the lower court. I dont think that theres any prospect of the right to elect trial for either-way offences being restricted by any legislation. The Coalition Agreement included support for trial by jury and I have every reason to believe there will be no legislation which will change the right to elect. I say that with considerable confidence. But there will be consideration about the many cases which come to the Crown Court when the magistrates decline jurisdiction. There is concern MAY 2012 when people are found guilty or plead guilty and the sentence passed by the Crown Court is within the magistrates sentencing powers. The magistrates could be restricted in declining jurisdiction if the value of the property taken was less than a certain amount but reserving the defendants right nevertheless to say that he wants the case to go to the Crown Court to be tried on indictment. That I think may be a live proposition. Q: As chair of the Olympics working group, do you think there has been enough planning for the effect of the Olympics on the work of the courts? A: No-one quite knows what, in criminal justice terms, we may be faced with. We do know that there will be considerable disruption in London to normal transport services and in terms of the police and other emergency services, which has led to the conclusion that the Crown Courts and magistrates courts most affected will have a much reduced number of courts. Seeing as the Crown Court has an allocated number of sitting days for the year, we shall make up for that later. In the four and a half years Ive been involved in this, I have been anxious to avoid a legacy of serious cases connected with the Olympics that might last a very long time after the games were over. That would besmirch the legacy of the games and might affect the perception of this countrys ability to deal with all aspects of a competition of this sort. This is why we have the Olympics offence definition and also the commitment to give such cases priority and the realisation that, because such cases have no particular local community connection in London, they can be tried in some other place in England and Wales. Q: What is your career history? A: I read law at Cambridge, came to the bar, with a mixture of work which, in the 1970s, was very broad. I did civil work of a common law kind and criminal work all the way through my practice which is now very difficult to do. I did a good deal of crime, prosecuting and defending. Then I became an assistant recorder and recorder and now Ive done almost 16 years, believe it or not, as a circuit judge and ten years as resident judge. I also sit in the Court of Appeal which is clearly completely different from sitting with a jury. It is very interesting reading how other judges have summed up a case or how theyve sentenced people in different parts of England and Wales. And it involves discussions with three judges: there are no dissenting judgments in the criminal division so there has to be give and take at times. Its hard work, a lot of reading. Ive learned a lot from it. I hope that what the Crown Court judiciarys involvement in the Court of Appeal brings

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is some of the day-to-day experience of how the law and sentencing guidelines are operating at the coal face. Q: Do you have time for any activities outside court? A: Im focused on family, with four children and our first grandson due at the beginning of June. I do follow professional football very closely. I support Manchester City. I dont get to see many games. I watch a lot on the TV, avidly read everything and talk about it probably too much.

Serving Justice?
An academic analysis of the effects of the Stop Delaying Justice! initiative Research suggests that there are obstacles to defence compliance with the demands of case management, in terms of such practical matters as the ability and willingness of the client to assist, or the timing of legal aid decisions. While prosecutors and judges tend to see the process as administrative, defence lawyers, despite supporting the principle of co-operation between participants and acknowledging the need for an efficient criminal process, think more adversarially: thus the obligation to the court might give way to their perception of their obligation to the client (McEwan and Garland: (2012) 16.3 International Journal of Evidence and Proof). It is partly to change this cultural understanding that the Stop Delaying Justice! initiative is addressed. Perhaps implicitly acknowledging that rule promulgation alone may not achieve the desired change in ethos, the programme employs direct training and also staged magistrates courts scenarios accessed via the internet with written explanatory commentary. The materials are aimed at defence lawyers as well as the judiciary and legal advisers. This drive to make case management more effective coincides with possibly the first use of a wasted costs order made against a solicitors firm (R v SVS Solicitors [2012] EWCA Crim 319). The determination in the judiciary to enforce the Criminal Procedure Rules is now unmistakeable. know whether they are guilty or not, regardless of access to legal advice. There is no acknowledgment that some suspects believe that all sexual intercourse is rape, or that taking mailbags for a train ride is inevitably theft. Although the guidance concedes that there may be exceptional cases where a defendant who pleads guilty at a later stage should not lose the credit for an early plea, these will be rare and must be strictly justified. The examples given, such as a defendant with no memory of the event, refer to gaps in factual, rather than legal, information. It is very clear that any paucity of detail due to the CJSSS (Criminal Justice: Simple Speedy Summary) initiative does not establish an exceptional case.

Defence difficulties
Defence advocates are under pressure to supply details of their case and to do it early. It is not a precondition that they should have received all the prosecution evidence from the CPS. Yet it is difficult to see how they can properly agree that a particular witness is not needed without seeing the statement, or agree arrest evidence or a tape transcript that is not supplied. Duty solicitors with heavy caseloads may have little time on the day in question to consider any evidence that is available, and may also doubt whether they should agree evidence unless certain of continued involvement in the case. There may be some reservations also about the claim that, since completion of the form amounts only to early notification of what line is to be taken at trial, advance notification of the defence involves no conflict with legal professional privilege. Logic suggests that, where no information is disclosed that would not be public at that stage, the contention is correct. If, however, the defence team are uncertain at the case management phase, a defence statement would reflect only a provisional position, the gist of discussions so far, and be privileged. We are told that all summary trials are compliant with article 6 of the European Convention because of the possibility of a rehearing in the Crown Court. Given the considerable potential financial and other costs of retrial, this hardly justifies unfair proceedings in the magistrates court. To force defendants to make effectively binding decisions before they are ready would be oppressive; neither does retrial serve the interests of efficiency. MAY 2012

Robust approach
Some of the scenarios offer a very robust approach to case management, particularly those reflecting the aim that the plea should be entered and the case fully managed at the first hearing. Advocates should be ready to go through the documentation with their client on the day, with the case, if necessary, being put back in the list rather than adjourned. Pleas should be entered irrespective of the extent of service of evidence, disclosure of unused material or the grant of legal aid. Any lack of opportunity to secure legal representation or to review prosecution evidence is insufficient reason to delay entering a plea. The official view appears to be that defendants

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Excluding evidence
The materials are similarly robust on the consequences should the defence fail to identify issues as required. Courts are said to be entitled, in addition to making wasted costs orders, to refuse to allow a specific defence to be raised at trial unless notice of it was supplied in advance: in the Leona Rogers scenario, this is explained to an unrepresented defendant, who duly indicates her proposed defence. Writtle v DPP [2009] EWHC 236 is cited in the commentary as an authority for this, although there the prosecution had closed its case months before the defence produced a new expert report; also cited is Rochford [2010] EWCA Crim 1928, where no such course of action was advocated. Justice is not served by excluding evidence genuinely relevant to the issue of guilt, and to see an unrepresented defendant being threatened with the prospect of it constitutes an unedifying spectacle. An evident hardening of attitudes to CPS mistakes such as failure to warn essential witnesses to attend is little consolation. Although it might encourage greater efficiency to refuse an adjournment even if the case will therefore collapse, it also jeopardises the public interest in reaching accurate verdicts and properly punishing the guilty values to which the overriding objective commits all participants in criminal proceedings. The new climate holds verdict accuracy so dear that the defence must alert the Crown to its own mistakes. Therefore it should not be undermined in order to punish either side or to cut costs. Jenny McEwan Professor of Criminal Law, Exeter University Editor, International Journal of Evidence and Proof

Its All Greek to Me

The interpreter debacle A man charged with perverting the course of justice is told he is a pervert. A passer-by, found by chance to speak Lithuanian, is brought in to court to act as an interpreter. And a pet rabbit is registered as a Czech interpreter. There have been some light-hearted moments since courts and police stations began using Applied Language Solutions, a name now carrying its own intrinsic comedy, on 1 February this year. But the sober reality is that the subsequent shortage of properly qualified interpreters has meant that defendants are regularly remanded in custody while miscarriages of justice are inevitable.

Daley, my dad always said if he didnt end up behind bars, hed end up making a fortune. In December, the company was bought by Capita, indicating that someone could see profit in the enterprise. These developments probably passed beneath the radar of most criminal solicitors, perhaps already feeling the strain of responding to a torrent of consultations whilst simultaneously holding down paid employment.

Incompetence
Came 1 February 2012, however, and any solicitor dealing with a non-English speaking client was swiftly brought up to speed with the interpreters crisis. The new scheme has created problems of two kinds. First, ALS cannot cope with the demand for interpreters. The company offers poor wages, and (to their credit) interpreters have remained remarkably united in refusing to work for the company. One consequence is that ALS interpreters frequently attend court very late if they show up at all. While this is frustrating for solicitors, the real impact is on defendants. For a client who has spent hours in a cell waiting to appear in court and who has no idea what is being said about them let alone what their fate will be the situation must be terrifying. Second, when ALS interpreters do attend court, they are often unable to do their jobs properly. Although the company employs some capable interpreters, a large number of those registered with the agency simply do not have the proficiency to undertake this highly skilled work. It used to be the case that, unless there happened to be someone in court who could speak the language in question, there was no way to assess an interpreters

How did it come to this?

Until July last year, the Ministry of Justice had been spending 60m a year providing interpreters across the justice system under the so-called National Agreement. These arrangements allowed the court to book directly a freelance interpreter, qualified by the National Register of Public Service Interpreters (NRPSI), when required. If there were any problems with an interpreter, they would not be booked again. The Eye of Sauron then fell upon interpreters and the MoJ calculated that savings of 18m could be made by using one company for all interpreters. The Framework Agreement came into being in July 2011 after a 12-month procurement process. The contract was won by ALS, who already had experience of running a similar scheme on a smaller scale in Oldham. ALS was established in 2003 by Gavin Wheeldon of Dragons Den fame, of whom his mother said My nickname for Gavin was our little Arthur MAY 2012

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competence. Under the current system, it can be quite clear that an interpreter has fallen short: the look of perplexity on a defendants face when words are mistranslated is often ample evidence. It is also alarming to be midway through a bail application only to find that the interpreter has been standing mute next to the defendant throughout, offering moral support perhaps but little else besides. Such travails mean significantly increased waiting time as the already overloaded court staff struggle to manage. We await the entirely foreseeable appeals and miscarriages of justice, just like those that led Lord Justice Auld to recommend, in 2001, that urgent steps be taken to increase the numbers and strengthen the quality of interpreters serving the criminal courts and to improve their working conditions. His recommendations resulted in the implementation of the National Agreement referred to above, now, regrettably, functus officio. seen, but when the cost of thousands of needless remands in custody, wasted costs applications and appeals is reckoned, it is not far-fetched to suppose that more money, rather than less, will eventually be spent. But there are lessons that can be learned, not least from the perseverance, tenacity and solidarity shown by the wider pool of interpreters. Indeed, they have already scored a significant victory when, less than two weeks after implementation, the MoJ announced that, With immediate effect, HMCTS will revert to the previous arrangements for all bookings due within 24 hours at the magistrates courts. The interpreters have kept up the pressure. While this has meant increased waiting times for solicitors and defendants, it has also highlighted the importance of interpreters to the proper functioning of the courts. They have also managed to maintain a relatively high profile for the topic in the national media, despite the story not being of instant appeal to those without a special interest. Ultimately, it is as our clients advocates that we must support the interpreters. We therefore wish them every success and sincerely hope that their efforts pay off, lest our highly skilled and highly respected cadre of interpreters is lost to the criminal justice system. Rebecca Niblock Dalton Holmes Gray

Language lessons
In considering this debacle, one can be forgiven for feeling a sense of dj vu. Cost-cutting is a necessary evil but the introduction of a nationwide scheme of this sort with minimal consultation, alongside an inadequate pilot study characterises a familiar approach to funding the criminal justice system. Whether the proposed savings can be made using ALS remains to be

The rule against sole or decisive hearsay evidence revisited In Al-Khawaja and Tahery v the UK , the ECtHR reversed its previous decision, ruling that where a hearsay statement is the sole or decisive evidence against a defendant, its admission will not automatically result in a breach of a defendants article 6 rights to a fair trial. The crucial question in every case is whether there are sufficient counterbalancing factors to permit a fair and proper assessment of the reliability of the evidence. The ECtHR accepted that it might be difficult for a judge to determine whether hearsay evidence would be decisive in advance of the trial. Sole meant the only evidence in the case and decisive meant evidence of such significance or importance as is likely to be determinative of the outcome of the case. The ECtHR stated that there were strong procedural

safeguards in English law to ensure fairness, for example, the CJA 2003 requires the reason for the absence of witnesses be justified and fall within one of the defined categories; and section 78 PACE 1984 provides a general discretion to exclude evidence. In Al-Khawajas case, the admission of hearsay did not violate his rights to a fair trial because: the reason for the absence of the witness made it necessary to admit the statement; it was in the interests of justice; the evidence was reliable as the deceased had made her complaint to two friends promptly after the alleged incident which corroborated her account; the deceaseds description of the incident bore strong similarities to a separate incident alleged by another complainant; there was no evidence of collusion between the witnesses; a strong judicial direction enabled the jury to

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conduct a fair and proper assessment of the reliability of the allegations. In Taherys case the court found that his right to a fair trial had been violated. Although the reason for the absence of the witness was justified, there were no counterbalancing factors which could compensate for the difficulties that would be caused to the defence by the admission of the statement and no judicial direction could provide a sufficient counterbalance where an untested statement of the only prosecution eyewitness was the only direct evidence against the defendant. The rule cannot be applied rigidly in every case and the admission of a witness statement in lieu of live evidence will be a last resort.

Book Review
Expert Psychiatric Evidence 2011
by Keith Rix published by the Royal College of Psychiatrists This book is by a well-known forensic psychiatrist who has recently obtained a Masters in Medical Law and Ethics. I wish I had had access to it a few years ago, when inadvertently, unwillingly, with legal ignorance and naivety, I became an expert witness in a case. The book is comprehensive, heavily referenced to statute and case law and also psychiatric literature. Central chapters are on the laws of England and Wales, with notes on other places. A separate chapter reports the main features of other jurisdictions. It covers different situations in which a psychiatrist may be requested to be an expert witness and includes frameworks for appearing in civil and criminal cases, different stages of those cases, reports for family proceedings, cases involving capacity, personal injury claims and matters before tribunals, inquests and other bodies.There are informative and clear boxes in all the chapters and further reading suggested in most. It is extremely detailed but readable, at times even amusing. Useful tips apart from "Preparation, preparation, preparation," and "Speak up, speak slowly", include "Keep your feet facing the judge and swivel to listen to counsel (the turning technique)" ! In court, the witness should keep calm and not be drawn into contest or argument - that is for the lawyers! Throughout, it emphasises the imperative to be objective, unbiased in giving expert evidence, not having regard to which side asked for your opinion. If your opinion changes, that change needs to be explained carefully. Useful appendices include examples of letters keeping track of the case, including all incoming and outgoing communications, and an imagined criminal report on Daniel McNaughton, February 1843. The report, laid out according to the Academy of Experts and Expert Witnesses Institute model, points to presentation, content and preferred style. Advice is detailed and practical, even extending to avoiding staples and paperclips. All aspects are covered, including secertarial support, billing, marketing yourself and holidays (with a more favourable time allowance for judges than for medical men)! Heisenberg, the mathematical physicist, tells us, An expert is someone who knows some of the worst mistakes that can be made in his subject and who manages to avoid them. This book will certainly help psychiatrists, perhaps also lawyers, avoid major mistakes. My own foray into the world of the expert witness could have been worse. Making allowances for my lack of legal sophistication, the jury sent a message to thank me and both sides of the case were understanding and courteous. In the unlikely event of another such occasion, I would certainly go prepared, armed with this book. Jane Garner FRC Psych

Letter to the Advocate

If any reader member, associate member or anyone else would like to express a view on current events in the profession or the courts, please send an email to the editor or assistant editor. Letters may be edited. Julian Young wrote about his difficulties in finding an informal resolution to his dispute with the CPS over their non-payment of wasted costs (London Advocate, issue 68, page 11). Perhaps his mistake was to think that the CPS would respond to anything less than a formal county court judgment, which he can get next time by virtue of section 41(2) and (3) of the Administration of Justice Act 1970, under which wasted costs against the prosecution are enforceable as a civil debt. If nothing else, he might at least enjoy watching the bailiffs confiscate the DPP's goods and chattels. Richard Wood 9 King's Bench Walk

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Knowledge of Guilt
Lay magistrates have pleasantly changed: when I qualified, my clients were sentenced by the Chamber of Commerce sitting with a few Masters of the Hunt for diversity purposes. If you asked the government why there were no black people, Asians or women on the bench, they'd reply that, as those folk weren't Club members, they hadn't got the depth of experience necessary for the post. The Chancellor's chihuahua had more chance of appointment than any gay or lesbian. The occasional women who did sit were even more frightening, making the entire court feel like they were still in short trousers. When I snuffled my way through a plea, suffering from a stinking cold, one of them first jailed my client and then said, "And as for you, Mr Reid, go home and go to bed!" Howls of court laughter, swiftly silenced by a basilisk stare. Police evidence was holy writ, acquittals in an assault PC trial were only secured if the officer, when asked to dock ID his assailant, pointed triumphantly to the list caller. It was just as bad if you worked in the court system. I remember the first Nigerian appointed as a court clerk having her name deliberately mispronounced by every police jailer in the building. She is now a district judge. Now it has changed to the point that it is my hillbilly client who complains: "Bruce, what chance do I stand on a domestic, with three women on the bench?" My local benches are perceptive, humane and reflect their community, so I was disturbed to read the reply of the Chair of the Magistrates' Association in the last Advocate when he was asked if the prosecution is obliged to prove its case. Traditionally the answer was, simply, "Yes". He doesn't seem to agree. Instead, he replied that, if a defendant knows he is guilty, then he should plead guilty, and that, if the defendant thought otherwise, then it was up to the CPS to prove it. Pardon? When did that tradition change? The burden of proof is not an optional extra. Isn't it the job of the Crown to prove its case full stop? If they cannot, it is not an offence. Bankers won't admit fault, why should a burglar? Where did he get the idea that, just because a man is guilty, he's got to admit it? Probably sitting on the same committee who devised the "Stop Delaying Justice!" initiative, the committee whose invitation to defence solicitors seems to have got lost in the secure e-mail but the CPS, Justices' Clerk's Society and HMCTS somehow managed without us. Did no-one notice the empty chair? Never thought I would line up with those Colonel Blimps of yesteryear; but they would never have come out with that one. On a positive note, you should all read R v Newell 2012 EWCA Crim 650, where the Court of Appeal has something sensible to say about using the information given on pleas and case management hearing forms. I am now completing PCMH forms, albeit cryptically. Bruce Reid

Anyone wishing to contribute to the Advocate should please contact the editor. More news and views from the LCCSA are on the website: www.lccsa.org.uk 12
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