In Your Defence

by Sarah Langford

  2 Derek

  1 ‘… let them go with a caution’: Rather than prosecuting minor offences, a caution allows an offender to be dealt with without prosecution. It is available only for minor offences, and the offender must admit his guilt. A caution is a legal warning, not a conviction. A conditional caution has, as the name suggests, conditions attached to it. If the offender breaks these, he can be prosecuted for the original offence. Cautions may have to be disclosed to employers in particular kinds of jobs, and are also made available to the Disclosure and Barring Service (which replaced the Criminal Records Bureau).

  2 ‘… public interest to charge them’: Every prosecution case must pass a two-part test. Firstly, there must be sufficient evidence to provide a realistic prospect of securing a conviction against each suspect, on each charge. If there is not enough evidence, the case stops at this point. The second test asks whether prosecuting the case is in the public interest. Even if a conviction might be likely, if prosecution is not in the interests of justice, then the offence must not be charged. Police are able to make this decision to charge in respect of some minor offences. In all other offences, the papers have to be reviewed by a Crown Prosecution Service lawyer, who applies the two-stage test and decides whether or not the police should charge. See previous note.

  3 ‘… before a judge and jury’: A ‘summary offence’ can be heard only in the magistrates’ court. An ‘either-way offence’ can be heard in either the magistrates’ court (before three lay magistrates or a district judge) or the crown court (before a judge and a jury). An ‘indictable-only’ offence can be heard only in the crown court. All cases start in the magistrates’ court. The magistrates’ sentencing powers are limited up to six months’ custody for one offence, and up to twelve months’ custody if there are two separate offences which are dealt with by consecutive sentences. If a likely sentence will exceed the magistrates’ powers, it will be sent up to the crown court. A defendant charged with an either-way offence also has the right to choose trial by jury over trial in the magistrates’ court.

  4 ‘… the offence of “gross indecency”’: The Criminal Law Amendment Act 1885 first prohibited gross indecency – defined as any sexual contact between men, either in public or private. The offence was eventually repealed by the Sexual Offences Act 2003, which also created Section 71 – Sexual Activity in a Public Lavatory (see next note). In 2017, under the Alan Turing law, all men who had been convicted in the past of gross indecency due to consensual, private sexual acts were pardoned.

  5 ‘… meeting in public lavatories for sex’: Section 71 of the Sexual Offences Act (SOA) 2003, Sexual Activity in a Public Lavatory, is summary only, punishable by up to six months’ imprisonment, and not an offence that requires the offender to register his details with the police. It is committed if a person is in a lavatory to which the public (or a section of the public) has access and intentionally engages in sexual activity. The person can be alone, their motive and intent are irrelevant, no one needs to have been caused alarm and distress as a result of the sexual activity. The offence comes from the 1967 SOA Act, which decriminalized private homosexual acts but prohibited homosexual activity in a public lavatory. The 2003 Act made the offence gender-neutral. However, between 2012 and 2017, 92% of people apprehended by the British Transport Police for the offence were male, at a rate of more than one a month.

  6 ‘… to back up his client’s story’: Section 34 of the Criminal Justice Act 2003, which came into force shortly after Terry’s trial took place, obliges the defendant to give notice to the prosecution of any witnesses they intend to call, including their names, addresses and dates of birth.

  7 ‘… law conversion course’: There are two routes to becoming a lawyer. The first is to study a law degree and then to decide whether to undertake the Legal Practitioner’s Course and become a solicitor, or to undertake the Bar Vocational Course and become a barrister. The second is to study a postgraduate law conversion course, which takes one year, and then go on to undertake either the LPC or the BVC. To become a solicitor, the LPC has to be followed by completing two years of a training contract within a law firm. However, anyone who has completed the BVC is able to call themselves a barrister whether or not they have then gone on to complete their year’s worth of pupillage or have been accepted as a member of a chambers.

  8 ‘Inn of Court’: There are four Inns of Court: Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn. Originally constructed as places of education, where barristers would hone their skills by debating at various dinners, they still fulfil a hugely important role. Every barrister must join one of the four Inns, and it is this Inn which then ‘calls’ them to the ‘Bar’ when the barrister has finished their academic training. Barristers must still go to a minimum of twelve dinners a year at their Inn of Court, and the Inns also provide other training both during and after qualification. They are also crucial in providing scholarships to members to help with their academic fees.

  9 ‘… ever-decreasing rates of publicly funded pay’: The average fee income for a full-time barrister working on legal aid rates was £56,000 in 2014–15 (before tax). This had fallen annually from £69,000 in 2012–13. In 2014–15, 39% of barristers received less than £50,000 (The Composition and remuneration of the junior barristers under the Advocates’ Graduated Fee Scheme in criminal legal aid, published by the Ministry of Justice, 17 December 2015). The figure represents claimed fees, not earnings – costs such as travel, chambers’ expenses, training and insurance still need to be deducted (between 20 and 30%). Barristers are self-employed and receive no pension, holiday, sick or parental-leave pay other than that which is statutory.

  10 ‘… technology made it obsolete’: In 2016 the Crown Court Digital Case System was rolled out nationally. Now a barrister is emailed their brief by the CPS or solicitor and all disclosure or other material is uploaded on to the system.

  11 ‘… principle of open court’: The openness of judicial proceedings is a fundamental principle dating back to the Middle Ages and now enshrined in Article 6(1) of the European Convention on Human Rights – the right to a fair trial. Any citizen or reporter can go into a criminal courtroom, observe and take notes. Anything said in open court is a matter of public record.

  3 Saba

  1 ‘… orders with respect to children’: Over the years the name of orders made by a family court under Section 8 of the Children Act 1989 has changed. What were once termed ‘Custody Orders’ became ‘Residence’ and ‘Contact Orders’ and then, through the Child and Families Act 2014, the law was amended to ‘Child Arrangements Orders’ in an attempt to prevent parents asserting that one parent had greater importance than the other in the child’s life. This umbrella term is now used to cover any orders which set out the division of a child’s time between each parent.

  2 ‘… a variety of cases’: Magistrates who have undertaken the necessary training have the power to decide upon a wide variety of family cases – both public and private – unless they involve more complex issues, in which case they will be allocated to a judge. There is now a single family court system encompassing all family cases and, in theory, cases are allocated to the appropriate level of tribunal – magistrate or judge – when they are issued.

  3 ‘Children and Family Court Advisory and Support Service (CAFCASS)’: This is a non-departmental independent public body whose officers are social workers independent from the local authority. They are appointed by the court at the beginning of a case to speak to both parties and see if there are any welfare or safeguarding concerns in respect of the children, in case the court wants them to be involved further. They will conduct a brief risk assessment, then write a letter to the court reporting what each parent has told them and whether they have discovered anything of concern in the social services and police records. If not, this will be the end of their involvement. If welfare concerns are raised, either at the beginning of a case or at any point before the final hearing, the court may ask CAF
CASS to prepare a Section 7 report. This is a full investigation by the CAFCASS officer, who will speak to the children about what they want, if they are considered old enough. The CAFCASS officer will conclude the report by making a recommendation to the court about the kind of orders the court should make.

  4 ‘… finding of fact hearing’: A finding of fact hearing is a trial within the family proceedings, which is used to determine whether allegations made by one party against the other are true. Both parties make statements, give evidence and are cross-examined. Unlike a criminal trial, the court makes its decision on the balance of probabilities, in that it has to decide whether what one party alleges is more likely to have happened than not. These findings are then used to inform the court’s decision on the application.

  5 ‘… representing himself’: There is currently no accurate record of how many defendants represent themselves in criminal proceedings, but anecdotal evidence suggests it has risen since the introduction of means testing for criminal legal aid representation, particularly in the magistrates’ court. A report published by the charity Transform Justice in 2016, entitled Justice Denied, cited a survey by the Magistrates Association in which 25% of defendants who came before its members in 2014 were unrepresented. The report stated that ‘Interviewees had witnessed unrepresented defendants not understanding what they were charged with, pleading guilty when they would have been advised not to, and vice versa, messing up the cross-examination of witnesses, and getting tougher sentences because they did not know how to mitigate.’ The Ministry of Justice is currently conducting an inquiry into the situation in the crown court.

  6 ‘… cross-examine on his behalf’: Sections 34–40 of the Youth Justice and Criminal Evidence Act 1999 prohibit a litigant in person in a criminal trial from cross-examining a complainant in proceedings for sexual offences, or a child, but there is no such prohibition in the family court. If Saba’s hearing were to take place today, Asif would not qualify for legal aid (see next note). Although her evidence could be given behind a screen or via a video link, Asif would have to cross-examine Saba himself in court. In 2017 an updated Practice Direction (PD12J) stated that a judge should ‘be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case’. This requires the judge, who must then rule on the truth of the allegations, to ask questions of one party on behalf of the other. Judges, practitioners and charities have all asked parliament to replicate the criminal law prohibition on cross-examination within the family court, and to provide funding for an advocate to cross-examine on the alleged perpetrator’s behalf.

  7 ‘… representing himself’: The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly restricted legal aid to a large number of civil cases, including most private law disputes in family cases (i.e. any case where there is not state intervention). An exemption is available for victims of domestic abuse. Those who can produce ‘trigger evidence’ to prove they are the victim of domestic violence are entitled to legal aid. Applications can be made for legal aid in ‘exceptional circumstances’. Between April 2013 and March 2014 only 57 applications were granted. Those excluded from qualifying for legal aid include parents whose first language is not English. Were Saba’s case to take place today, she would qualify for legal aid on the basis of her history of domestic violence. Asif would not qualify for advice or representation and would have had to cross-examine Saba himself (see previous note). LASPO has resulted in a significant rise in the numbers of individuals representing themselves in hearings. Ministry of Justice figures for 2017 show that 18% of all family cases had legal representation for both parties; 36% had no lawyers involved at all.

  8 ‘… want to come to court’: The courts are growing increasingly alive to the power of unrepresented litigants in person to make repeated and baseless applications in an effort to harass their ex-partner. The court does have the power to restrict this. Section 91(14) of the Children Act 1989 empowers any court dealing with a Children Act application to prevent future applications being made without permission of the court. This is called a Barring Order. This, however, is a power which is used sparingly by the courts and only after a litigant has already made numerous and groundless applications.

  4 Raymond

  1 ‘… and his seventeen-year-old sister, Daniella’: If someone under the age of 18 is charged along with an adult, their case will be heard alongside the adult’s in the criminal court, not the youth court.

  2 ‘… plea and case management hearing’: This is now called the plea and trial preparation hearing. It is the first hearing in the crown court at which a defendant may enter their plea, and is used to timetable the trial and any other directions. At this hearing a defendant is required to submit a defence case statement, which sets out the specifics of their defence – i.e. which elements of the evidence are challenged. This ensures that, if evidence is not challenged, it can be agreed, and the witness then does not need to come to court. The prosecutor will simply read out the undisputed evidence.

  3 ‘The closer to trial, the less credit you get’: See note.

  4 ‘… Daniella’s guilty plea’: Daniella’s conviction was admissible into evidence as proof that she had committed the offence, under Section 74 of the Police and Criminal Evidence Act 1984 (PACE 1984). However, Section 78 of PACE says that if admitting the conviction would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, then the judge can refuse to allow it into evidence. It is up to the trial judge to rule whether admitting a co-defendant’s guilty plea may carry such weight in the minds of the jury that it would unfairly impact on the defendant’s trial.

  5 ‘… must throw it out!’: After the prosecution case has finished, the defence are entitled to make a ‘submission of no case to answer’ if they think that the prosecution’s case against them has not raised any evidence that the defendant committed the crime, or is very weak. If the judge agrees that there is no evidence that the defendant has committed the crime, he must stop the case. If the judge thinks that the evidence is tenuous, weak or vague, or inconsistent with other evidence, then he may stop the case if he thinks that a properly directed jury could not safely convict on this evidence.

  6 ‘… compensation for the DVD player’: The Criminal Injuries Compensation Bureau (CICB) financially compensates blameless victims who have been victims of violent crime with money from public funds. Since its inception it has paid out more than £3 billion, making it among the largest compensation schemes in the world. The rules of the scheme and the value of the payments awarded are set by parliament and are calculated by reference to an injuries tariff. It is not necessary for the person who caused the injury to be identified or convicted in order to receive a payment, but victims must report the crime and cooperate with the police and any prosecution. The efficacy of the CICB has been called into question by cases such as the false allegations made by Jemma Beale against 15 different men, a man known as ‘Nick’ who made false allegations against senior army and political figures, and an unnamed man who made allegations against a fire chief – all of whom were paid large sums by the CICB despite most of the allegations not being proved in court.

  5 Rita

  1 ‘… to apply to their sentence’: See note.

  2 ‘… names on the indictment’: The indictment is the legal charge sheet in a crown court which contains the name of the defendant(s) and the specifics of the charge of the offence.

  3 ‘… end of the prosecution’s case’: See note.

  4 ‘… directions relevant for our case’: The Crown Court Bench Book and Specimen Directions is a court book dealing with jury and trial management and summing up and sentencing in the crown court.

  5 ‘… from common law’: The law of England and Wales, of Scotland and of Northern Ireland is made up both of statutes made by parliament and of common law. Common law is a history of convention and lega
l decisions given by judges in the appeal or supreme courts which are binding, until they are overruled by a new judgment from the same, or a higher, court.

  6 ‘… of one mind, of one will’: A husband and wife cannot, in law, be guilty of a conspiracy if only the two of them conspire to commit a crime. The same rule now applies to civil partners. The law says that where a husband and wife are charged with conspiring with another, the jury should be directed to acquit the husband and wife if they are not satisfied that there was another party to the conspiracy.

  7 ‘Unless they had misunderstood it’: In February 2010 the Home Office published a paper entitled ‘Are juries fair?’ It remains the most comprehensive study into the workings of a jury in England and Wales published to date, involving over 68,000 jury verdicts across all crown courts. Ultimately the study was positive about juries. However, it also looked at jurors’ understanding of a judge’s legal directions in a trial. Whilst over half the jurors in the study thought the judge’s directions easy to understand, it turned out that only a minority (31%) actually understood the directions fully. A written summary of the judge’s directions on the law given to jurors at the time of the judge’s oral instructions improved juror comprehension: the proportion of jurors who fully understood the legal questions in the case in the terms used by the judge increased from 31% to 48% with written instructions. There is no requirement for judges to hand juries written directions.