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Papers, please (Magistrates Court Style)

German photograph at the top of this post courtesy of Bundesarchiv, Bild 101I-030-0780-28 / Kintscher / CC-BY-SA 3.0, CC BY-SA 3.0 deDefendants in court now must declare their nationality. If a Defendant is a citizen of more than one country, s/he must declare all citizenships held.

As of 13 November 2017,

“A person commits an offence if, without reasonable excuse, that person fails to comply with such a requirement, whether by providing false or incomplete information or by providing no information.”

You might wonder, “why now?”

You may also wonder why it matters.

The big deal is this:

Nationality confirmation is asked for both at first appearance (where bail is considered) AND on the day of trial.

I could understand, if, for example, there’s a genuine fear that a dual British / American citizen is going to skip bail and get on the first thing smoking back to Dallas, why it’d be relevant at a Bail hearing. That is a legitimate need.

But what’s the need for the Magistrates to know about the dual or any citizenship at all just before the trial starts?

Here’s how it plays out in court:

Legal adviser, “Please state your full name, date of birth, address and your nationality”.

Defendant, “Mr Elmer Fudd, 217 Wabbit Hole, Barking, BA57 1AA, White English”.

Legal adviser, “No, ‘White English’ is your ethnicity; what passport do you have?”

or, in the Youth Court …

Defendant, “I’m Somalian and Italian”

Legal adviser, “Are you a citizen of Somalia and Italy?”

Defendant, “I don’t know”.

Legal adviser, “Do you have a passport?”

and after further to-ing and fro-ing, it’s established that the young person is a British Citizen only.

Here’s the problem

Magistrates are human beings.

And some human beings believe in stereotypes.

They may not say it out loud, or even admit it to themselves, but are they thinking:

“Oh God, not another Ruritanian cab-driver”

“Oh God, not another Hucksterian fraudster”

“Oh God, not another Texan bar-fight”.

– or even –

How is *s/he* a German, etc. citizen only?

Is anybody else wondering what the pressing need for the Court to know one’s citizenship immediately before the trial commences is?

I’ve found the policy note behind the new declaration of nationality requirement. Regrettably, this note does not address why nationality confirmation is needed. You might even think that the note implies that nationality declarations in court are nothing new.

All I can say about that is that before November 2017, I’d never heard of any Defendant being asked to declare their nationality for the purpose of court proceedings.

Papers, please?

If the Government can’t tell us why they need the courts to ask for nationality information, how can we help but draw the obvious conclusion that this Government’s descending into a “papers, please” mentality – with the real risk of two-tier justice.

This flies in the face of British constitutional principles such as, “Equality before the Law”

Thinking of giving two fingers to the man by direct action?

Guess again. As per the Policing and Crime Act 2017:

A person guilty of [the offence] is liable on summary conviction to either or both of the following—
(a) imprisonment for a term not exceeding 51 weeks (or 6 months if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003), or
(b) a fine.

Parliament, as always, is Supreme and can make or unmake any law as it sees fit.

While we still have the closest thing to an entrenched Bill of Rights we’re ever going to have, the Government’s, “papers, please” approach to Defendants needs to be considered in light of our:

Article 6 right to a fair trial;

Article 8 right to private and family life, home and correspondence; and the

Article 14 prohibition of discrimination.

I see fellow Defence advocate, Greg Foxsmith has also blogged on this topic.

While the most the Criminal defence lawyer community can do is to try to get the UK Supreme Court to issue a “Declaration of Incompatibility” (of the “papers, please” law with the European Convention on Human Rights), a stand does need to be taken.

As Baron Montesquieu once said:

Photo credit link

In the frame for Assault Obstruct PC? Read this.

Posted on: December 17th, 2017 | in Advocacy, Criminal law, Direct Access Barristers, DIY Law

I represented a family who were all charged with Assault / Obstruct PC. After engaging in deep legal research and repeated viewing of the police officers’ body worn camera footage – as well as CCTV from the local council, I was able to effectively cross-examine the officers – taking each of their versions apart, brick by brick.

By the end of the police officers’ evidence, the District Judge invited the CPS to reconsider their position (i.e., take instructions and drop this case like the rotten hot potato it was).

The CPS came back and offered, “no further evidence”.

The District Judge said that the officers’ evidence was, “so unreliable” that she had no alternative but to find that my clients had no case to answer. My clients all walked free – with their reputations intact.

I worked with Traymans Solicitors on this job – and sent them a text right after the judge dismissed the case to let them know what happened. My solicitor immediately texted back:

I’ve heard! You were apparently PHENOMENAL!

While I can’t guarantee all my clients will get this result, I do know this: The only way to get the best result is through experience, meticulous preparation – and knowing how to press the police for Disclosure.

What it’s like to represent yourself in court

Posted on: October 2nd, 2017 | in Advocacy, Direct Access Barristers, DIY Law

If you are thinking about representing yourself in court without getting legal advice first, do yourself a big favour and read this article written by Emily Dugan. It’s an excellent insight of what can happen to the wo/man who is her/his own lawyer.

Of all the stories Emily Dugan notes, Mohammed’s sums up the risk of acting as your own lawyer.

“Mohammed is several months behind on his £650 monthly payments for an Audi A7. The lender’s website quotes interest rates of up to 52.7% for people who cannot get credit elsewhere.

When Mohammed had a good job as an insurance adviser the money already ate up all but £150 of his disposable income. But in January he wrote off the car at a traffic light and was unable to claim for it on insurance. A month later he lost his job, which relied on having a car to travel to meet clients.

Now he says he is working part-time doing deliveries for a restaurant using their car. “I’ve left my rented apartment and moved back in with my parents with my wife. It’s been a tough few months,” he concedes”.

Mohammed decided to go it alone

“He couldn’t afford a lawyer to fight for the car but is convinced he will be ok. “I’ve got a genuine case to argue myself; I don’t need to get someone to argue for me,” he says. He has paid off £22,500 so far on the car and still owes £9,000”.

How a false premise can lose a case

  1. Had Mohammed contacted a direct access barrister, they may have quoted a £250-£500 fixed fee for advice. That advice could have included whether the insurance company was right in rejecting his claim – as well as whether he had an argument in law to counter the lender’s arguments.
  2. Courts aren’t about whether a person has a “genuine” case or emotion. All the court is going to be interested in is how the law applies to what’s happening in your case.

When my car’s transmission died, I could have bought a book or tried to figure out how I could fix it online, but I thought I’d be better off with someone who knows about transmissions – and whether it is worth me having it repaired.

Seeing a qualified direct access barrister or a solicitor is no different.

But back to the courtroom and Emily Dugan’s article

“Soon after the case opens, the judge asks Mohammed: “Have you had the opportunity to take any legal advice prior to today?”

In a small voice he answers: “No”.

When asked for his arguments, Mohammed struggles. “I’m going to make the payments, no doubt about it,” he says, before explaining about losing his job and asking hopefully “if for about a year I can get some leniency for payments?”

In response, Hawkes makes a series of clear arguments as to why Mohammed is unlikely to pay.

The judge asks if there’s anything further Mohammed wants to add. “Just that I paid most of my term off. It would be sad to let the car go with just £9,000 left.”

In formal language the judge reads out a decision ordering the car to be returned to the lender, “pursuant to section 92 of the consumer credit act 1974” and turns to Hawkes to ask what costs apply. He details a bill of legal and court fees totalling £492.

Mohammed looks on aghast, and the judge asks: “Is there anything you want to say on the subject of costs?”

He replies, his voice now just a whisper: “The amount can’t be reduced to anything?”

“The claimants ability to pay unfortunately doesn’t apply,” the judge explains, making an order for the costs to be added to the outstanding sum owed to the lender”.

I think it’s a national disgrace that legal aid and the old 30 minutes of “legal help” paid for by the government has been decimated – and that most people in Mohammed’s situation will need to pay for advice.

The point is that neither political Party has made a manifesto promise to restore legal aid to its former glory. 

The other point is that the Bar needs to do much more to make the public aware that we are available to give reasonably priced fixed-fee advice, which in Mohammed’s case, may have given him the ammunition he needed to fight  – or which may have saved him the costs of losing in court.

My previous post, “These finding legal advice tips will amaze you” may be a good starting point.

Governance & Standards Committee Complaints Basics

Are you a councillor under threat of Governance & Standards committee referral and investigation for an alleged breach of your local Code of Conduct? There are basic procedures your Monitoring Officer should be following. These basics are found in the Localism Act and in your council’s own Governance and Standards Complaints Procedure.

In many post-Standards Board for England cases I’ve seen, Monitoring Officers fail to get a grip on Localism Act and their own council’s procedures. These grip failures can lead to ineffective investigations – and do nothing to assist Governance and Standards Committees in assessing whether or not there has been a breach of the Code.

Allegations must be written.

The Localism Act states:

“an allegation, in relation to a relevant authority, means a written allegation— that a member or co-opted member of the authority has failed to comply with the authority’s code of conduct”

Before any request for a councillor’s explanation, the Monitoring Officer will no doubt be required by their council’s own rules to provide an exact copy of the written complaint to the councillor.

The reason why the written allegation should be disclosed to the councillor at the outset is because the councillor must know exactly what’s being alleged before being expected to provide an answer to it.

Not a paraphrase in an email or telephone call ambush.  This isn’t a Monitoring Officer to councillor general chat. It’s an investigation into a written allegation.

What are the constitutional law principles underpinning these procedures?

Executive branch officers (and Monitoring and other council officers are part of the Executive) only have power to act where parliament has given them that power.

The Localism Act only gives officers the power to investigate written allegations. There’s no power in law for Monitoring and other council officers to conduct fishing expeditions.

Now that the Standards Board has been abolished, many councillors are feeling obliged to get their own legal advice on how to hold Executive officers to account. The sooner advice is taken, the easier it is to untangle any council and Monitoring Officer missteps.

Speeding Success: the 75 in a 40 hopeless case

Speeding success

Need for Speed?

Speeding down the North Cray Road, and having clocked somebody driving 75 mph in a 40 zone, the traffic officer was sure this one would stick.

But I found a technical defence and my client walked away from the Bexley Magistrates Court with his clean licence intact.

His father said:

“Kristin was great today and got the case thrown out. We’ll put some proper words as a testimonial, but Kristin is a very hard working Barrister. She put in a ton of work in getting the case together including two 40 minute phone calls over two evenings”.

Acting as guarantor for a tenant: is it enforceable?

Posted on: May 16th, 2017 | in DIY Law, Landlord & Tenant, Tenants' Rights

guarantor Guarantor for a friend’s tenancy rent and now it’s all gone wrong? Is the landlord coming after you because they say the friend you “indemnified”  and “guaranteed” is in arrears – and you’re friend’s disputing the amount, skint, no-where to be found, etc.

If you didn’t get legal advice before signing a rent guarantee, now’s a great time to do so.

Yesterday, I advised a man in these circumstances – and it took all of five minutes for me to ascertain that the rent guarantee in his case is not enforceable.

The man I helped yesterday is intelligent and can read English to a high standard. His only issue is that (up until his appointment with me) he didn’t understand the law.

It made perfect sense for him to come to a direct access landlord & tenant expert – and I was pleased to give him clarity and a steer.

His post-advice email to me reads:

“Thanks for your advice yesterday [that] the guarantee is meaningless.

Again, in absence of flowers, choccies etc, many thanks”.

My Theft Mindmap

Posted on: May 8th, 2017 | in Criminal law, Get qualified

Students get a bit overwhelmed at this time of year – and panic about how they are going to learn – and memorise lots of law. Because I’m more of a “show me” type of learner, I make mind maps. Here’s a partial theft mind map for you to complete.

Setting aside a CCJ is easy, right? (Or what Mad Dog Mattis can teach us about supplying legal services)

Posted on: April 17th, 2017 | in Advocacy, Direct Access Barristers, DIY Law

Despite barristers and solicitors up and down this country posting blogs about the importance of getting legal advice before touching litigation with a barge-pole, I am routinely approached by litigants in person – after their cases have hit the buffers in court. (more…)