Politics: surveillance

[Cmdr. Maegil]

You mean that presumption of innocence went out the window in UK's legal system?
How come your bar associations - and general public - put up with it? That should raise a huge ruckus among any... uh... informed audience... annn... never mind!...

The CJA 2003 makes it an offence for the press to report any "derogratory assertions" advanced in mitigataion. So if you punch someone because he has raped your daughter, this will not be reported.

I remember reading a short tale in which a man had been slandered by a reporter and couldn't press charges against the newspaper who just treated him as garbage. So, as a last resort, he went to the reporter's house, punched him in the nose and called the police to be arrested. When taken to court, he used the dock to clear his name and slander the reporter even worse than he had been - before the rest of the media that he had invited for the trial. The media couldn't print any of his claims as a private person, but since he was speaking in court, that made it official and printable. So,he got fined for a misdemeanor, and the reporter went to news hell...
Ah, well, that's fiction. Still, you brits have some 'funny' laws!

[LittleBear]

The Bar went on strike in October 2005. We were threatened with prosecution and asset forfit under EU competition laws. (Being self-employed we are not allowed to strike, nor do we get sick pay holiday pay, have any employment rights, working time directives don't apply etc).

The Criminal Bar Assossiation wrote to every MP before the passage of the legistlation pointing out the injustice caused and continues to do so. But MPs don't read the legislation they vote for. As part of a govenment "get tough on sex offenders drive" all sexual offences were made "serious specified offences". Sounds OK at first glance?

Except S.5 of the SOA make consuntual sexual activites between underage teenagers rape. So a 15 year old who has sex with his 15 year old girlfriend is guilty of child rape, faces an automatic life sentence and a lifetime on the sex offenders register. Even if the Judge uses his discretion to impose the 12 month sentence recomended by the S.A.P, he still has a conviction for child rape, and will be treated as a peadophile for the rest of his life.

Proffessor Thomas has been saying publicly for the last 5 years that the approach to sentencing is unworkable.

The scientist who invented the DNA test has publicly said that the DNA database is scientificaly flawed as the test assumes a random population not a sub-set. DNA is taken by the police if you are arrested, even if you are completly innocent and never charged with anything. At the moment therfore 25% of black males in the UK have their DNA on the database but only 3% of white women do. This completley throws any probability matches as the crime scean sample is not being compared with the population (which is what you need to do to answer the question- "What is the chance of the sample coming from this suspect as opposed to somebody else), but a police-selected sub-set. Had the police being reling on this method 30 years ago, the yorkshire ripper would never had been caught. He had never been arrested before, instead sampls on the database would have probability matched innocent people on the database.

But it is obvious that MPs do not even read the legislation they vote for, never mind anything barristers say. After all barristers only prosecute and defend cases, we couldn't possibly have any idea much better to listen to the Daily Mail!

The media simply repeats govenment lies without checking. For example the truth is legal aid fees have fallen by 40%, but the govenment releases press releases saying the Legal Aid Budget has doubled and barristers are paid £33.50 per hour. Actually all hourly rates for barristers were abolished in 1995 and replaced with fixed fees. A sentance for example pays £60 all in. When you consider that the train fare from London to Norwich to arrive at 9.30am is £64, doing this sort of work is just not sustainable.

I am amazed by the failure of the media to report or contradict govenment lies. In the last month on Sky News three Ministers have told outright lies about the legislation they have passed. EG:-

LIE : "The Court has a discretion to decide whether a trial in the UK or USA is preferable." (In relation to the Nat West 3 case)

TRUTH : "The Court has no discretion. The USA is a Catagory 1 state under the Act. If a US DA therefore fills out a two page form correctley, then the Court has no choice but to send you in custody to the US. Even if the UK police have already investigated the case, found you innocent and arrested someone else, or even if you are charged with doing somthing that is not even a crime in the UK!"

[JensAyton]

I continue to rebel by taking Legal Aid trials, mentions and sentences for fees of 10p per hour. However if from Monday 30/4/07 you find yourself falsly accused you'll have to represent yourself.

Although as a lawyer I'd charge you less than a mechanic on private rates, it would be a criminal offence for you to pay me and a criminal offence for me to accept payment. (Proceeds of Crime Act 2003).

I have found a Proceeds of Crime Act (2002), but all its commencement dates are in 2002 and 2003, and it doesn’t have provisions which obviously relate to the situation you describe. Could you provide a more specific reference?

[LittleBear]

Section 328 Section 329 & Section 330 are the main ones.

328 provides "A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention use or control of criminal property...."

So if you are a footballer with no previous convictions charged with rape, you pay your solicitors who then instruct me, neither of us commits an offence. Whether or not you are guilty the money you paid your solicitors is not criminal property nor do I have any reason to suspect that it is. I can act for you privately.

However, suppose you are a bank clerk charged with fraud, or a nurse accused of pinching drugs and selling them. You may be innocent (as you claim) or you may be guilty. Any money you pay me may have come from your honestly gained salary as you are innocent or may have come from crime as you are guilty. I do not know which is the case. I know people make false allegations as I have in the past represented "victims", police officers and MI5 officers who have pleaded guilty to peverting the course of public justice by making things up. On the other hand I know that true allegations are made. I do not know whether you are innocent or guilty. The "Cab Rank" rule requires me to accept any case regarless of my own opinion of the merits of the clients case. I am an Advocate not a Judge and it is not my job to believe anything. The Defendant is entitled to be judged by a Jury not his barrister.

However, in order for you to be arrested in the first place the police must have had "reasonable grounds to suspect" that you committed the offence and the Magistrates must have found that there was a case to answer in order to commit you for trial. I do now have grounds to suspect that any money you pay me could have come from drug dealing / fraud.

In Bowman v Fels [2005] 2 Cr App R 19, the civil division of the Court of Appeal decided that S.328 did not cover the situation where the State has sized a client assets (although he has not been charged with a crime as yet) and he instructs a lawyer to try to recover his assets. This reversed the previous ruling in P V P [2004] Fam 1.

However, the lawyer would be foolish to accept instruction in this situation as unless the Judge rules to release the money, whilst he has not committed the crime, he will never be paid as the client has no money with which to pay him.

If however you have been charged and turn up at the solicitor’s office with money to pay for representation, things are more difficult. The Bar Council Guidance is that doing these things do not fall within the Act:

“It is the Bar Council’s view, having regard to the Directive upon which the Regulations are based, that the following do not constitute participation in a transaction:-

(a) Ascertaining and advising upon the legal position of a client once a transaction has taken place.
(b) Representing a client in legal proceedings which culminate in a settlement or an order of the court. This will include the drafting of the terms of settlement.
(c) Drafting a will.”

However they go on to point out:-

“Section 328(2) provides defences. Most pertinent is section 328(2)(a) which provides that a person does not commit an offence if he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent.

So in theroy I could act for you privately if I made disclosure in relation to the money paid to the solicitors and the NCI consented. However, in the real world the NCI would never consent. If the police are prosecuting you for (say a pinching money from your boss), they are unlikely to consent to you using what they say is the “swag” in order to pay your barrister as:-

1) If they do, you might be able to prove that you are innocent so why on Lave are they going to let you make it more difficult for them to notch up a conviction and make the clear-up rates look better?

2) The police are allowed to pocket any money they confistacte towards their budget, so if they allow a large chunk of your money to be spent paying an expert, a private eye to investigate the case or me to represent you in Court, they won’t be able to confiscate it from you if you are convicted as it will not be part of your realizable assets.

In practice therefore it is very difficult to undertake private criminal work unless the person has no previous convictions and the offence alleged is not one that involved making any money.

Quite apart from the possibility of the barrister himself being prosecuted, POCA gives the Crown powers to freeze assets as soon as the Defendant is arrested. It is unlikley therefore that the client will have any money available to him.

The enactment of POCA is one of the main reasons that the Legal Aid budget has doubled. It is not that lawyers are being paid more, it is that more people qualified for legal aid as they had no assets available to them. Moreover, before POCA the LSC could recover the Legal Aid paid out from the Defendant. Now however the Crown confiscates all the Defendant's assets if he is convicted and so the LSC cannot recover the money from him.

[Dr. Nil]

@LB: Scary but also very interesting posts.


--

I even lost my faith in nihilism...

[Charlie]

@Dr Nil, LB et al:

Eeek!

Every time I think I've plumed the depths of our lunatic society I find there is yet more... and more... and more...

Is it just that we enjoy Oolite simply as a game, or is it that there is some comfort to be found in the idea of being alone in deep space cocconed in armored hull-plating..?

[Sigh]

[Cmdr. Maegil]

I live alone and cocooned in a hull... and yes, I think I'm better off. Sigh!