Eighteenth letter to the Lord Chancellor

thebungblog:

And the grateful bosses will be queuing up to offer directorships when he gets the boot.

Originally posted on theintrigant:

Eighteenth letter to the Lord Chancellor,

Lord Chancellor, Secretary of State for Justice,

Mr Chris Grayling MP,

30th July 2014.

Dear Lord Chancellor,

There has been a revolution in the workplace up and down this country. The behaviour of bosses has dramatically improved and this has been achieved by a simple adjustment to policy made by you in July 2013. Figures just released compare employment tribunal claims made between January and March 2014 with the same period in 2013.

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Why I voted Yes in the Ballot and No to the deal.

The CBA leadership of recent vintage, from Max Hill QC, through Michael Turner QC and now Nigel Lithman QC have done a terrific job in the last few years. They have woken the sleeping giant of the Criminal Bar and given it a voice in the Criminal Justice system.   They have of course proposed things such as Grad Fee + that I, as someone who is privileged enough to have 90% of his practice in VHCCs, fundamentally disagree with.  But their leadership has been outstanding and proved to us all that we are more than the sum of our parts.

I voted Yes to the question on the ballot.

Why?

An 8.75% cuts to Solicitors fees came in on 20th March. Another 8.75% of cuts will come in next year, despite reports to the contrary, whether deliberately misleading or not.   If the majority of the CBA membership vote No to the measure and yes to the deal it does not take a genius to see that the one area that Solicitors must look to offset the catastrophic cuts that will have wiped out their very slim profit margins is AGFS and keeping Crown Court briefs in-house. You cannot blame them for that and as small and medium business owners they would be mad not to.  As others have said if we vote No on this ballot measure it is a rerun of the Carter reforms, which we know resulted in a loss of work for the Bar to solicitor-advocates and HCAs such that their share of AGFS is now some 30%.  Voting No to the ballot question (and yes to the deal) will be the death of the junior bar. 

It is really that straightforward.

Why else?

We have seen unprecedented unity across the CJS to oppose this Government’s barmy approach. We have had success with all the things we as a Criminal Bar have initiated: days of action getting publicity, VHCCs  returned (and not taken up by others) and the No Returns policy making Judiciary and MoJ sit up and take notice. Solicitors have supported us with all these.  The success of this approach is that having been put on the naughty step by the MoJ for much of the previous year our leaders are now regular guests at Petty France. The MoJ approached us to negotiate last week – not the other way round. The time limited deal offered last week is not, following another meeting Our Leaders were invited to on 3rd April, apparently quite so time limited.  I am sure that I do not need to spell out the implications of this to you. 

We can and must do more for all CJS professionals.

Why else?

A No vote in the ballot is to reject the actions of counsel who took the brave decision to return their VHCCs briefs last year when the 30% cuts were confirmed not knowing whether the rest of the Bar would support them. A No vote rejects the part those who returned VHCCs (and those who have had cases contracted since December who have declined to sign) in getting the MoJ to approach the CBA to negotiate. 

Forgive me for personalising this but I was one who returned a VHCC and I did so as the sole breadwinner in my household and with two sons under four.  Even though VHCCs are 90% of my practice, enough was enough.  I have not worked for 4 months but it remains the right decision.  There is no commitment by the MoJ to negotiate on VHCCs other than ‘within the existing financial envelope’ ie they have no intention of reversing the cuts with this deal.  VHCCs are not, as some have tried to argue, a separate issue. It may have been a quirk of timing that the return of VHCC briefs has spearheaded the CBA campaign to oppose the MoJ’s cuts but spearheaded it has. Operation Cotton, the VHCC I returned, with 5 defendants without counsel and 101,000 pages of served evidence, is due to begin on 28th April.

I do not think it is an accident there have been two meetings with the MoJ in the last eight days.

Why else?

The return of VHCCs and the days of action have had an impact. The No Returns policy was making huge waves and if re-initiated will keep doing so. Combined with the radical and brave decision by the LCCSA and CLSA to have its members decline to apply for Legal Aid in the Crown Court from 7th April I believe that we will be successful. It may be painful – it has already has been so for VHCC practitioners and the Junior Bar with No Returns. But we have a once in a life time opportunity here to safeguard the system that we have spent our professional lives supporting, Criminal Justice. We must continue to fight the cuts and unite more closely with our Solicitor colleagues.

Solicitors and Barristers cannot be simply replaced by Green Goddesses.

And finally….

A Yes vote is a vote for 100% of the Criminal Bar and 100% of the Criminal Justice System.

 

Tim Thomas, 1 Pump Court Chambers, tt@1pumpcourt.co.uk, @TimothyThomas79

Why I Support the CBA but Oppose the Deal

Originally posted on A view from the North:

I am a Manchester United fan. This season that makes me something of an expert when it comes to witnessing capitulation. So I know what I am saying when I say that the deal announced last week between the Bar and the MoJ was not a capitulation. It was an error, but to suggest it was a capitulation would be to suggest that it was the product of a lack of desire to fight. The CBA have demonstrated ample appetite for the fight.

Nonetheless I believe the deal is not a good one for the Bar. And I believe it should be undone by the Bar and the CBA asked to continue their splendid fight. There are a number of reasons why I suggest you should urge the CBA to ditch the deal but before I turn to those if I may suggest some things not to base your decisions…

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A Change of Heart on the CPR

Originally posted on Dan Bunting - A Life in the Bus Lane:

Introduction

So, how was it for you? Was it a new dawn? Did you feel the change? Did the earth move for you? Was everything more efficient? I’m referring, of course, to the 7th October 2013. There was celebration throughout the land – we had the twin pleasure of a new version of the CPR – Criminal Procedure Rules (see here for a guide to the main changes) coupled with a new Criminal Practice Direction. Riches galore.

When the CPR first came in they were met with a healthy dose of scepticism from pretty much all lawyers across the board. I was the outlier, the person who was in support, one of the few who was looking forward to a new regime where cases would be managed properly from start to finish. I was wrong.

It was said by the ‘powers that be’ that peoples’ views would change once…

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“A QUESTION OF INTERPRETATION”

I don’t usually write about my own cases, because I have never been a big believer in blowing my own trumpet. In addition to that, this blog is supposed to be about the Bribery Act, although with the caveat in the “About” section (which nobody reads) that I may wander off at a tangent from time to time. Well this is that time.

We rightly take pride in our judicial system which, despite occasional flaws, usually comes up trumps when compared with those in pretty much any other jurisdiction.

Part of that necessarily has to include the manner in which we dispense justice to those who are visitors to this country, and are accused of crime in our courts.

In exactly the same way as I would expect, or at least hope, to be able to understand and participate in proceedings abroad if I were unlucky enough to be arrested in foreign climes, anyone in the dock of an English Court is entitled to expect the same. And not just in court either. The legal process for a non-English speaker is very likely to begin long before the swearing in of a jury.

Thus it was, when the client in question drove his lorry off the Channel Ferry into the welcoming arms of UKBA, who expressed a very healthy interest in the “anomaly” within his load, revealed by their detection facilities (see below), linguistic assistance was required.

 

 

 

 

True, he spoke a little English. That is the way of an international lorry driver. They need to eat and buy necessities, so they have a smattering of the language as often as not. Same goes for UK drivers travelling abroad.

However, merely because they won’t starve in a Burger King, does not mean they are bilingual.

In fairness to UKBA, I have yet to come across a case where an arrested person who asks for one, is not afforded the services of an interpreter, but therein lies the rub. What sort of an interpreter are they likely to get.

This is not yet another attempt to hurl vitriolic abuse at Applied Language Solutions. (although I did find the word “Solutions” a little difficult to type having set my keyboard to non-ironic mode.)

What follows began some time ago, in the days before the MoJ put interpreting up for sale to Delboy with a Dictionary.

 

 

 

 

 

 

The warning signs should have been there for Interviewing officers as well as the Duty Solicitor. Answer after answer came back, “He says, He did, He went. Etc etc. This was not a simultaneous verbatim translation in the first person, it was quite clearly a third person précis of what was actually being said.

Two problems arise here. It’s not just the defendant’s answers that are being improperly interpreted. Who has got the faintest idea of how the questions are being interpreted to him?

Thus it was that the interviewing officer, quite reasonably thought that the defendant was being evasive and changing his story, and proceeded to say so under cross-examination in the witness box.

The fault lay in the fact that the defendant had told the officer he had done something on a particular day, but the interpreter on each of half a dozen different occasions, omitted to translate which day it was. The officer genuinely believed it was a different day. When you are dealing with a tachograph case, this is of course, vital.

Problem was that although it was clear that the interpreter had not been doing a perfect job, it being a minority language that not many were familiar with, no-one could have realised just how badly she was getting it wrong in both directions.

Fortunately it became so obvious in the course of that officer’s evidence that something was wrong, the judge was asked for an adjournment overnight so that the court interpreter could help check what was actually on the tape.

Prosecuting counsel wisely decided to arrange for the interview interpreter to attend court the next morning.

On the morrow, armed with a large number of errors deciphered the night before, I invited the prosecution to have their “expert” listen to the tape again, and see if she agreed her own translation.

Within five minutes there was a knock on my conference room door from prosecuting counsel. “I’m very sorry, we agree that there are significant errors. We have to ask for the jury to be discharged so this can all be done again.”

Fortunately for him, the defendant was on bail. He could be allowed to return to his home in Eastern Europe, while this was done.

Eventually, we were able to agree a revised version which went before the jury, in which it was clear that on all the matters criticised by the interviewing officer, the defendant had in fact been telling the truth, but the interpreter had failed to interpret the answers.

We were lucky that the court appointed interpreter, (NRPSI accredited) was not only able to do the job properly, but also happy to put in a lot of extra hours at very short notice, in order to provide the necessary guidance, without which we would never have been any the wiser.

All this took place before ALS arrived on the scene. However the retrial could not be listed until after the new arrangements were in place. By a minor miracle, and I know not how because she has not accepted the Capita shilling, the same court interpreter was instructed to interpret for the trial, at which the defendant was acquitted by the jury, but not before yet another misinterpretation, this time of a text message, had been corrected by her sharp eye, with the immediate agreement of the prosecution “expert.” (A different one.)

Not only should this never happen, as a matter of common sense, it should not happen as a matter of law either.

 

 

 

 

I do not know why this has happened, though I suspect yet again it is down to money, but there is a very simple answer. It lies in the judgement of Gorman J. In the case of R –v-Attard, 43 Cr.App.R. p 90. (Nerd Reference, Archbold 8-193) Although this was a trial at first instance at the Central Criminal Court, it is of persuasive authority on Crown Court Judges, and should be followed.

It says simply this.”When a defendant is interviewed by police through an interpreter, only the interpreter can give evidence of the questions which he put to the defendant on behalf of the police, and of the answers given to him by the defendant.” (my italics).

What that always used to mean is that the ROTI’s (interview transcripts) were produced as exhibits by the interpreter who conducted the interviews, having checked them for accuracy first. That of course costs money.

What happens now is that tape is sent to an audio typist who prepares a transcript of what he or she can hear in English. That is then produced as an exhibit by the interviewing officer, who can only check the English, NOT the interpretation.

So there are two alternatives. Either the defence solicitors have to apply to the Legal Services Commission, in every case for authority to submit the transcript to an interpreter for checking, (i.e. so they can get paid), or the job should be done properly, and the transcript, and  interpretation should be checked by the original interpreter, who has a second chance, without pressure, to listen to what was said and ensure accuracy.

I am not going to get into a spat about the competence or lack of it, of those who are contracted to provide interpretation services at police stations or UKBA posts.

If the case of Attard is good law, and to my knowledge it has never been challenged, then every interpreted interview should be subject to a review by the original interpreter, and exhibited in that interpreter’s witness statement, before it can be placed before a court.

Half-arsed suggestions that all this can be circumvented by a Hearsay Application, will not do. Yes, it is hearsay, but you can choose any number of reasons from Section 114 (2) of the Criminal Justice Act 2003, as to why it should not be admitted.

So, next time you as a solicitor or counsel are sent a brief for a client with an interpreted interview, produced by the interviewing officer, do not forget to include on the Case Management form that you object to the admissibility of the defendant’s interview in the absence of any statement from the interpreter producing it. Simples!

And then duck!

Watch this space.

Time to Stand Up for the Little Guys (& Girls)

Avid readers of this Blog, (aka gluttons for punishment) will remember my outburst last year. “Government Declares Bribery Not an Offence!”

The tenor of that little tome was to the effect that however sexy the Bribery Act 2010 might have been, it was not perceived as having much relevance, or bite, to the average Jo.

A well respected criminal QC, and good friend of mine, has described it in an article last year as a “Toothless Wonder.”

Much of the cynicism has arisen as a result of the common perception that the SFO being the principal prosecuting authority under the act, has a) no interest in, and b) no budget for, prosecuting anything but the most headline grabbing, stone cold bonkers cases that they can’t possibly lose.

There were dark mutterings from the departing Director that they were hot on the tails of a number of cases, but for now, Mum’s the word. We all await developments on that, especially in the light of the new Director’s protestations that the future of the SFO is secure, and, by implication perhaps, prosecutions are just around the corner. (So’s my Taxi apparently)

To be fair to David Green QC, as a lot of people have been pointing out, it takes time for any substantial case to be detected and investigated to the point of charge, and not being retrospective, the Bribery Act 2010 cannot apply to any act of Bribery committed before July 1st 2011.

The one single exception was the case of Munir Patel. Small Bribery if ever there was. Requests for the effecting of an improper performance of his function at £500 per time, most of which had occurred before the act came into force, but it gave the opportunity for the DPP, (NB, not the SFO) to flex his muscles and launch the very first Bribery Act prosecution.

What has happened since? Nothing but a deafening silence.

Are we to believe that no single act of Bribery, by way of offer nor request, has occurred anywhere under the jurisdiction of the Act since July 1st 2011?

Of course they have. Probably every day, but none that any public body has seen fit to investigate or prosecute. a) because they are not interested, and b) because they don’t have the money.

And yet every day of every week, in one small or not so small way, large numbers of people are suffering from the effects of bribery in circumstances that prosecutors should be taking action to protect them.

If a small shopkeeper catches someone shoplifting, and has a cctv film to prove it, then any police officer or CPS lawyer would be hard put to argue that they could not be bothered to prosecute. The public, and small shopkeepers deserve to be protected from petty criminals, which is a very important reason for the existence of the Theft Act 1968. If such offences were ignored by the authorities, a lot of small businesses would go out of business.

At least you can insure against Theft or Burglary from your premises.

So why does the same not apply to the Bribery Act?

There cannot have been a day in the months since last July when some small business has not lost a contract to a competitor as a result of behaviour by that competitor which contravened the Act.

Pundits at the time, (including the MoJ) were only too ready to declare that everyday hospitality would not offend against the act, with a whopping great hint that any hospitality would have to be well over the top before attracting the SFO’s attention. Multi Million pound “commissions” for securing Infrastructure or Armaments contracts at the very least.

So it’s one law for the rich, and no law for everyone else.

Not everyone really gives a Tuppeny Tortilla about what WalMart have been up to in Mexico, it is quite literally half a world away, yet it has grabbed all the corruption headlines here and in the USA.

Consider the fate of Average Joe with his small family firm, producing Widgets in his home town, employing as he does, a significant number of the local population. They rely on their jobs to pay their mortgages. Other local businesses in turn rely on them to spend their wages locally, to support each other.

There are bigger companies up the scale producing similar widgets, who are better placed financially to secure contracts to supply them to a customer, not because they necessarily produce a better product, but because they have more resources to “promote” them.

Having more money to pay more talented salesmen is one thing, but using more money to grease palms by whatever means, is quite another. Over lavish promotional parties or gifts, the Mulberry Pens on the table for the promotional event etc. Where is the line to be drawn?

There could be a very simple test. Suppose Average Joe does not win the supply contract. A month or so later he’s at a function attended by the purchasing manager of the firm who did not buy his widgets. Joe asks straight out why he lost the deal. Purchasing manager replies, “well your widgets were just as good. In the end my wife was particularly pleased with the Louis Vuitton bag they sent her for Christmas, Frankly that’s what swung it.”

The widgets contract was lost. Joe had to lay off half his workforce through lack of orders. The laid off employees had to sell their homes, and some local businesses suffered such a drop in trade that they had to close.

Joe goes to the police and complains. They say, “It was only a handbag, we’re not going to prosecute for that. It’s not in the public interest.” Well as we have seen, it WAS in the interest of quite a few members of the public in Joe’s home town.

A small local family building firm could have exactly the same problem. A larger contractor gets work by similar means, nothing too expensive but just enough to swing the decision. Family firm and employees out of work and homes.

To my certain knowledge, from discussions with professionals after seminars I have delivered, larger firms of surveyors are elbowing out smaller or single practitioner outfits, by means that would not bear scrutiny from a prosecuting lawyer familiar with the Act.

All of the above and still no mention of “Referral Fees.” A kickback by any other name that can secure the illegal awarding of a contract to the financial detriment of the innocent.

Now imagine what happens if a sole practitioner local Chartered Surveyor walks into his village police station and says he wants to make an allegation of Bribery against a competitor who has filched a contract from under his nose by paying a referral fee not on the basis of his own merit as a surveyor, but as the highest bidder.

“Not a police matter sir, that’s one for the civil courts,” says PC Pilate.

Well. No it isn’t, or it shouldn’t be. Why should there not be a prosecution, in just the same way as if the same competitor had broken into your office and stolen cash from the safe? It amounts to the same thing in the end, and you can’t get insurance against losing a contract by Bribery, as you could against losing money via theft.

———-

Well. I’m happy to say, now there CAN be a prosecution.

A week or so I picked up a link on Twitter to this site.

http://www.emmlegal.com/

They can explain far better than I who they are and what they do, but in a nutshell:

They are real lawyers with high level experience of fraud and related prosecutions.

They have investigative resources in depth, on tap.

Rather than flounder through the civil courts on your own or with your friendly family high street solicitor, trying to claw back what you have lost which maybe difficult or impossible to prove, if you lose out to a competitor who has used bribery to win a contract you can bring a private criminal prosecution under the Act.

You will need cogent evidence of course, or know in which direction to point a trained investigator.

It would also require the approval of the DPP or the SFO Director, but if it is being handled by such responsible lawyers, known to and trusted by both Departments, this should be no obstacle.

If the prosecution is successful, then the court can order confiscation of the defendants’ proceeds of the bribe, which will be the full revenue value of that contract, and further it can order that the part of confiscation sum that represents your loss can be paid direct to you, as well as ordering that defendant to pay your costs of that prosecution.

Nobody has thought of this before. My own guess is that the CPS and/or DPP will be very happy for them to take on this work, thus relieving their own hard pressed resources and funds from a task they simply are not geared up to perform.

Certainly those to whom I have spoken in the last year who feel the Act is toothless might have good cause to think again. With a facility to investigate and prosecute bribery at all levels, and not just the headline grabbers, the Bribery Act might just be about to start snapping at the heels of the complacent after all.

I never thought I’d find myself quoting Ken Clarke with any form of approbation, but he did begin the preface to the Section 9 Guidance with these words. “Bribery Blights Lives.” Well it does, and here’s a way to stop it

Watch this space

UP TO THEIR NECKS IN CRUDD

Yes I’ve been away for a while, working as it happens, but woke up this morning to news of something that merits the attention of our esteemed Director of Public Prosecutions.

If he can manage to tear himself away from the exhausting task of “improving the quality” of the prosecution product that he promotes, (i.e. slashing staff and destroying in-house morale),  he might just like to open a copy of the Bribery Act (Section 2 is the bit you need Keir) and have it handy while he’s poring over the Peter Cruddas story in today’s papers.
This is NOT one for the SFO, but fairly and squarely, one for him.
He needs to look at some law, and so do we:
Section 2:

Offences relating to being bribed
(1) A person (“R”) is guilty of an offence if any of the following cases applies.
(2) Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).
And then this:
(6) In cases 3 to 6 it does not matter—
(a) whether R requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party,
(b) whether the advantage is (or is to be) for the benefit of R or another person.

And he also needs to look at what Cruddas said, – as do we.
http://www.bbc.co.uk/news/uk-politics-17503116

(this link may need cntrl-click)

“What you would get, we’d get you at the Cameron and Osborne dinners.”

“If you’re unhappy about something, we’ll listen to you and put it into the policy committee at Number 10”
“Some of our bigger donors have been for dinner in Number 10 Downing Street in the PM’s private apartments….. “

“Things will open up for you… but you need to go in with a bit of, you know, it’s no good scratching around with ‘it’s ten grand now and five grand then’, …minimum hundred grand, but the nearer you can get to two hundred grand, and hold back for the events, … it’ll be awesome for your business”

So what does Section 2 have to say about the above?
Well he’s not “agreeing to receive” money, in the sense of accepting a financial advantage that has been offered, because from what we can see on the video, nothing has been proactively offered.
It follows that nothing has been “accepted” either.
The issue hinges on whether or not anything he says amounts to “asking” for a financial advantage.
He doesn’t need to receive anything, the offence being complete merely by the making of the request.
What he did not say was, “Please give the party some money.” It is evident however, that this was a meeting between the party co-treasurer and two prospective donors.

We do not know at whose instigation this meeting took place, or what discussions preceded it.
From Cruddas’ point of view, he was faced with people who were considering donating, and wanted to know what, if any, advantages a donation might bring.

Again we don’t see the entire conversation, but we DO see Cruddas effectively setting out a “tariff” of benefits. The more you give, the more you get.

Does Section 2 require a specific request for a financial advantage, in order for the person making that request, to commit an offence?

Your humble blogger would submit that the answer to that question must be “No.”

To conclude otherwise would mean that any broad hint, or “nudge and a wink” would fall outside the act, both in terms of asking for a bribe (Sec2) or offering one (Sec1)

In other words, telling someone that if they happened to be kind enough to place a brown envelope stuffed with cash in your briefcase, after which they might just happen to get an invite to dip their snouts in the Number 10 Pig Tough, would not be an offence, whereas coming straight out with “Gissa Bung,” would be.

If the DPP ducks the issue by saying that there was no direct request for payment, then the whole act is dead in the water. (pun intended.)

As one of Her Majesty’s Counsel, learned in the law, Keir Starmer has to face up to the fact that here is a senior Tory Party official who has given a clear intimation to a potential donor, that in return for, and on condition of, the payment of a large sum of cash, that donor would be given direct access to the Prime Minister, the Chancellor of the Exchequer, and influence in the Number 10 policy committee, for an “awesome” business advantage, not enjoyed by others.

This would amount to the effecting of an improper performance of the function of the person compiling the guest list, to invite someone to a dinner specifically in return for cash, to secure a business advantage not on the basis of need or merit, but “wedge.”

That improper performance would be effected in breach of the relevant expectation of you or me, (See sections 4 & 5) that political parties would not dish out favours for cash. (I did type that with a straight face, honest.)

Section 2 Subs 6 (b) makes it clear that the cash does not have to be for Cruddas’ advantage.

Or as we lawyers say, “you’re nicked sonny.”

That’s all for now, but as I always say, “Watch this Space.”