Crime Team Newsletter – Second Edition

Welcome to the July edition of the 33 Bedford Row Crime Team newsletter. 

I am delighted to report, as you will have seen from our blog, that slowly but surely work in court is increasing with many of us attending actual in person hearings and even trials!  Positive news indeed.

This month’s newsletter comprises articles from:

Nigel Edwards Q.C. and Daniel Walker– “Sentencing Serious Violent and Sexual Offenders”;

Ayesha Smart and Nigel Edwards Q.C. - “Section 13(1) Terrorism Act 2000 offences- are they strict liability?”;

Sharmila Salvi – “Second Post Mortem Examinations - The Defence Position”;

Andrew Kerr – “Adverse Inferences”; and

Rabia Mir – “How High Fiving Police Officers Turned Off a Jury”.

We also have insight from our indomitable Senior Clerk, Gary Reed, in his article “From Gloom to Zoom”. 

A date for your diary:

On 23^rd July between 1.30-2.30pm we shall be holding a webinar hosted by Robert Fitt and Jennifer Brenton on “The Regulation and Investigatory Powers Act 2010(RIPA): Covert Surveillance and Social Media”.

In the meantime we hope you and your families are all keeping safe.

Best wishes.

Nichola Cafferkey

[Head of Crime Team]

 

Sentencing Serious Violent and Sexual Offenders

The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 (SI 2020/158) (‘The Release of Prisoners Order 2020’) came into effect on the 1^st of April 2020. The Release of Prisoners Order 2020 makes fundamental changes to the sentencing of serious violent and sexual offenders. 

This article will set out the changes that have been made, consider the impact and discuss the interplay in sentencing between the amendments and the guidance emanating from R v Manning (Christopher) [2020] 4 WLR 77; [2020] EWCA Crim 592. 

What has changed?

The Release of Prisoners Order 2020 makes a number of amendments to the Criminal Justice Act 2003 (‘CJA 2003’). 

The key amendment is made to Section 244 CJA 2003. This used to provide as follows:

(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 243A, 244A, 246A or 247 applies, has served the requisite custodial period for the purposes of this section, it is the duty of the Secretary of State to release him on licence under this section.

...

(3) For the purposes of this section “the requisite custodial period” means—

(a) in relation to a prisoner serving one sentence, one-half of his sentence…

Prior to the implementation of the Release of Prisoners Order 2020, all offenders sentenced to a determinate sentence would be released automatically by order of the Secretary of State once they had served one half of their sentence. 

Article 3 of the Release of Prisoners Order 2020 amends section 244(3)(a) as follows: ‘in relation to a prisoner sentenced to a term of imprisonment of 7 years or more for a relevant violent or sexual offence, as a reference to two-thirds’. 

The changes mean that an offender sentenced to 7 years or more for a ‘violent or sexual offence’ will no longer be released having served half of their sentence, but once they have served two-thirds. 

The ‘relevant violent or sexual offences’ continue to be set out in Part 1 and Part 2 of Schedule 15 CJA 2003. The list includes offences such as Manslaughter, False Imprisonment, Sections 18 and 20 of the Offences Against the Person Act 1861, Cruelty to Children, Robbery, and Rape. 

The Impact

The changes made to section 244(3)(a) CJA 2003 by the Release of Prisoners Order 2020 are fundamental and far reaching. The changes signal a far more punitive sentencing regime for society’s most dangerous offenders. 

Taking a very simple example: an offender is sentenced to 12 years’ imprisonment for Section 18 (Wounding with Intent). If he was sentenced to this on March 1^st 2020 he would serve 6 years imprisonment and be automatically released. If he was sentenced to this on the 1^st of April 2020, he would serve 8 years imprisonment before being automatically released. The impact is stark. 

Interplay with the Manning Guidance

On the 30^th of April 2020, the Court of Appeal (Criminal Division) passed judgment in the case of R v Manning (Christopher) [2020] 4 WLR 77; [2020] EWCA Crim 592. The impact of this case was previously discussed in the June edition of the Crime Team Newsletter. 

The key passages from the judgment are as follows: 

41. We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the COVID-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19 

42. Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. Moreover, sentencers can and should also bear in mind the Reduction in Sentence Guideline. That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates’ Court to retain jurisdiction, rather than committing for sentence. 

The Manning guidance applies across the board. Paragraph 42 states that where immediate custody is the only option in a particular case the length of that immediate sentence should take account of the fact that current prison conditions and regimes make the imposed sentence more onerous. Prison conditions due to the outbreak of COVID 19 are, therefore, a proper factor to consider when calculating the length of any immediate prison sentence. 

The Release of Prisoners Order 2020 undoubtedly makes prison sentences more onerous and punitive for the most serious violent and sexual offenders by requiring them to serve two-thirds of their sentence in custody. Given the Manningguidance urging courts to consider prison conditions when calculating the length of sentence, how do we square a more punitive regime on the one hand (through the Release of Prisoners Order 2020) with the note of caution in Manning?

Case Example

The tension between the amendments made by the Release of Prisoners Order 2020 and the cautionary nature of Manningcame to a head in a seven-handed case brought before Leeds Crown Court in which Nigel Edwards Q.C. recently acted. 

The matter was subject to trial in early January 2020. The Defendants who went to trial were found Guilty. A number of Defendants had pleaded Guilty prior to the trial taking place. Sentence was adjourned to allow all seven Defendants to be sentenced together.  Those who had pleaded Guilty remained on bail, whilst those found Guilty were remanded into custody. The onset of COVID-19 and the national lockdown that followed meant that the Sentencing Hearing was pushed back way beyond the 1^st of April 2020 and the bringing into force of the Release of Prisoners Order 2020. 

The likely sentence that had been advised by trial counsel prior to trial, and immediately after, fell within the upper range for section 18 GBH, but only just. The resulting incident took place in a popular bar, where young men of largely good character injured others by stamping and striking with the base of a heavy vodka bottle. 

Trial Counsel had advised a starting point of 9 years’ imprisonment, had Sentence taken place prior to the 1^st of April 2020 this would have meant that the Defendants would serve four and a half years, less the time on remand, in custody. Owing to the delay in Sentence the same advice was given but the two-thirds rule was now in force. The Defendants privately instructed two silks to consider the law, advise and act for them at Sentence.

The Sentence took place in late May 2020. The case advanced at Sentence included:

1. There was significant unfairness in the starting point as the change in the law meant that the sentence would be much harsher than anticipated;
2. The delay in Sentence was not the fault of the Defendants but the result of circumstance, namely, COVID-19 and national lockdown, which prevented the court from dealing with the matter prior to the 1^st April. This delay rendered the Defendants subject to the new sentencing regime; 
3. The case of Manning must be considered, given the impact of COVID-19 on prison conditions. The COVID-19 regime in prison exacerbates the punishment itself - 23 hours per day lockdown in cells; the suspension of all visiting rights with no prospect of visits until a cure/vaccine had been developed or found;
4. The sentence fell on the cusp between two categories, but even if this was not accepted the circumstances allowed the Judge to attenuate accordingly;
5. The learned Judge should exercise discretion and pass sentence with consideration of the change in the law and the associated period anticipated to be spent in custody but for the delay. 

Having heard seven mitigations during the Sentencing Hearing, the learned Judge accepted the arguments and passed a sentence of 6 years 11 months imprisonment. The Judge expressed the sentence in terms of the effects of COVID-19 on the Defendants and the impact of a quick and unexpected legislative change.

Conclusion

The impact of the Release of Prisoners Order 2020 on the release point for serious violent and sexual offenders marks a fundamental shift towards a more punitive sentencing regime.

Some may properly argue that such changes to sentencing legislation often coincide with political knee-jerk reactions in fast moving times. Many of the public may agree with these changes. However, we would all hope that the type of confluence of factors such as COVID-19 and legislative change do not clash against one another so starkly, if ever, again. Should such a clash again ensue submissions will need to be carefully crafted to take account of the law and judicial powers to avoid iniquity in such cases. 

Nigel R Edwards Q.C. and Daniel Walker

 

Section 13(1) Terrorism Act 2000 offences – are they strict liability?

The short answer is yes.

The High Court have recently held in PWR and others v Director of Public Prosecutions [2020] EWHC 798 (Admin) that Section 13 of the Terrorism Act 2000, which prohibits wearing or displaying articles in a way which could be construed as indicating support for a proscribed organisation, created an offence of strict liability.

Further, the High Court held that such an interpretation did not constitute an interference with the right to freedom of expression under article 10 of the European Convention on Human Rights.

The Law

Section 13(1) of the Terrorism Act 2000 provides that:

 (1) A person in a public place commits an offence if he –

            (a) wears an item of clothing, or

            (b) wears, carries or displays an article,

in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.

The Facts

The Appellants, Rahman Pwr, Ismail Akdogan and Rotinda Demir, took part in a demonstration in Arfin against the actions of the Turkish state. Each Appellants carried a Partiya Karkeren Kurdistane flag. The PKK, as it is better known, being an organisation proscribed under the Terrorism Act 2000.

The Appellants were found guilty after a trial in the Magistrates’ Court and on appeal against conviction at the Crown Court. 

The Crown Court held that:

-       section 13(1) was a strict liability offence;

-       Article 10 of the ECHR was engaged;

-       The conviction of such an offence was a proportionate response.

The Appellants appealed by way of case stated to the High Court. The following questions were posed:

1)    Is section 13(1) an offence of strict liability?

2)    If so, is that compatible with Article 10 of the ECHR?

Judgment:

1)    Is section 13(1) an offence of strict liability?

The Court held that section 13(1) did create an offence of strict liability (paras [50 – 60]) for the following reasons:

1. Section 13(1) is prescribed in clear and unambiguous language. There must be knowledge of carrying/displaying the item or article, and that action must be carried out in a way, or in circumstances that are, capable of arousing reasonable suspicion;
2. The mischief of the offence is aimed at remedying is conduct which “leads others reasonable to suspect the wearer of being a member or supporter of a proscribed organisation, that being conduct which gives rise to a risk that others will be encouraged to support that proscribed organisation or to view it as legitimate”. Therefore, the wearer’s intent is not relevant.
3. The predecessor to section 13(1) was drafted in like terms and there was no mens rea requirement;
4. The amendments to the Terrorism Act 2000 which inserted section 13(1A) and section 12(1A) were indicative – Parliament had chosen not to amend section 13(1), section 13(1A) was drafted in similar terms and section 12(1A) required an element of recklessness;
5. The Terrorism Act 2000 creates other offence where require mens rea is a requisite. Further there is no prescribed defence to section 13(1) in the statute. 

 2)    If so, is that compatible with Article 10 of the ECHR?

The Court also found that section 13(1) was compatible with article 10 ECHR (paras [63 – 72] for the following reasons:

1. The restriction is sufficiently prescribed by law;

2. The offence provides a legitimate aim – it is a “necessary part of the appropriate mechanism” for preventing terrorist activities or the spread of terrorist organisations;
3. A lesser alternative to prohibit conduct which creates the aforesaid risk does not exist.
4. The offence is not disproportionate. It is not limited to circumstances where the expression incites violence – this is only a factor to consider under the proportionality analysis;
5. The maximum penalty is not severe in comparison to other terrorism-related offences;
6. The appellants had no need to display the PKK flags and there was no substantial interference with their right to freedom of expression;

It was noted, however, that an offence under section 13(1) could be committed without someone knowing that their conduct arose necessary suspicion. That being said, this would rarely occur.

COMMENTARY

Strict liability offences such as this seem like draconian steps too far for many of us. But sadly with the advent of the internet age and the ability for groups and even just individuals to be able to indoctrinate others across continents and from the furthest points of the globe perhaps in the most inhospitable, or not, of places means action to identify people is needed.

In a recent case myself and Nigel Edwards QC were involved in the trial of a 16 year old from Durham said to be the youngest ever terrorist tried and convicted. He was the subject of long term indoctrination by far right neo Nazi white supremacist groups in the USA, hell bent on starting a global race war. At trial he was described unchallenged by an eminent Professor, acting as Crown expert, as being at the very end of a funnel of extremism the tip of their evil sword. Gratefully none of his or their plans were ever put into action. The interventions of sharp eyed teachers, police and specialists had spotted him early and to some extent followed him down the rabbit hole. It was perhaps only with their further intervention and significant digital forensic skills that the true enormity of what was proved as being planned became evident, and was perhaps avoided.

The ability to better intervene and do so sooner with offences such as this, may be unpalatable due to the lack of necessary mens rea, but may however be the necessary legal equivalent of a bunker buster. One that leaves no place to hide for those at the beginning of the funnel should they choose to align themselves even in the simplest ways with an ideology whatever that ideology may be. 

Perhaps it’s a step too far, but not if it’s your child or your relative or friend who however long later falls prey to the man sitting in Oregon or who has influenced that adult or child in Ferryhill or Bury who was just allowed to go unnoticed.

Checks and balances are always needed and must be of the most stringent available. 

Education about what is and is not acceptable what is and is not a proscribed group is all so essential.

Ayesha Smart

Nigel R Edwards Q.C.

 

Second Post Mortems Examinations – The Defence Position

Introduction

In a case in which I am instructed in by AGI Solicitors in Manchester, the defence request to allow a second post mortem (PM) examination was recently turned down by a Coroner’s Office. This article seeks to examine the defence position in requesting a second PM examination in death cases.

Chief Coroner’s Guidance 

In September 2019, after twenty years, the Chief Coroner published the first Guidance on the use of first and second PM examinations. It is essential reading for any defence practitioner seeking a second PM examination on behalf of their client.  

Where a death is reported to a coroner, usually from police, doctors or the hospital authorities, the coroner has legal control over the body of the deceased and has a statutory duty to establish the manner in which the death arose, the cause of death, the particulars needed to register the death and the identity of the deceased. 

Sometimes, the only way that a coroner can establish the medical cause of death or assist in answering the statutory question of how death occurred is through a PM examination. It is a matter for the coroner, and the coroner alone, to decide whether a first PM examination is even necessary and whether to permit a second examination of the body on the request of an interested party. 

Second Post Mortem Examinations & Defence Representations 

It is an anxious time for any defendant charged with any offence where death has occurred  and it is natural for any defence solicitor to instinctively want a second opinion on the cause of death, particularly as any meritorious request for a second PM examination is funded under the legal aid scheme. 

It is a common misconception that there is an automatic right to a second PM examination. There isn’t and it is for the defence to raise the request in writing and satisfy the coroner that a second PM is required. The request should identify the forensic pathologist to be instructed and their availability. The request should include why the material obtained at the first PM is not or may not be sufficient.

The Coroner’s Office should notify the defence of the date and time when the body will be released to the next of kin to be laid to rest, usually within 28 days of the first PM. The Coroner’s Guidance states that a period of notice, say 5 days, should be given in which to raise any request for a second PM. The coroner’s decision whether to allow a second PM is a judicial decision and an adverse decision must be given in writing. Thereafter, the same notice period of say 5 days should be given before the body is released giving the defence time to appeal. 

If the body cannot be released within 28 days of the death being notified to the coroner, there is a duty to notify the next of kin of the reasons. If the request for a second PM examination if granted, further delay will be encountered whilst prior authority is sought and funding put in place. 

Availability of Reports 

Frequently the report of the first PM examination is unavailable before a decision has to be made whether to allow a second PM examination. For example, owing to the pandemic, the defence in my present case were told that it would take ten weeks for the first PM report to be made available. The Defendant was granted Crown Court bail as a result of this delay.   

The Guidance acknowledges that it is unsatisfactory if a second PM examination is carried out purely because there has been a delay in obtaining the results of the first examination. The best solution is for coroners to do everything within their power to ensure that a preliminary report or summary conclusions from the first examination are made available at a very early stage, so that an informed decision can be taken on whether a second examination is justified. The Chief Coroner expects that the pathologist will produce a summary report to the coroner as soon as possible in order that the defence solicitor can make a decision as quickly as possible as to whether to make a request to the coroner to arrange a second PM examination.

There are likely to be other reports that would evidentially meet the representations made by the defence. The defence should seek confirmation from the Coroner’s Office or the police as to the nature of other primary evidence to be made available to the defence in due course as often reports may take several weeks. These reports may take the form of medical records from the hospital including body maps, operative notes from the hospital, scans, swabs, x-rays, photographs of the first PM, toxicology reports, neuropathology reports and histopathology samples – the list is not exhaustive. This evidence, founded on fact not opinion, may permit a defendant’s instructed pathologist to conduct a ‘desktop review’ without the need for a second PM examination. 

So too, where the first PM has provided clear and conclusive answers as to the manner and medical cause of death, a second PM will not be required. In cases where the cause of death is not in issue, such as a stabbing which has been witnessed or on CCTV or in a road traffic collision case where the issue is likely to be the standard of driving, it is unlikely that a second forensic PM examination will be needed. 

On the other hand, where a suspect is yet to be identified or charged, the coroner may order a second PM examination to be carried out within 28 days of the first PM so that a defendant, if subsequently arrested, does not lose his right to request a second PM. 

Competing Interests 

The coroner’s functions are to be exercised with proper regard to the considerations and interests of the parties involved. On the one hand, a second PM examination is likely to prolong the distress of bereaved families, yet on the other, given the high stakes that a defendant faces, a coroner must be alive to the risk of prejudicing a criminal case by refusing to allow a second PM examination. 

The full guidance can be found at: 

chief coroner guidance no.32 - post-mortem examinations including second post-mortem examinations - september 2019

Sharmila Salvi 

 

Adverse Inferences

It has been over 20 years since section 34 of the Criminal Justice & Public Order Act 1994 was introduced, and an adverse inference could be drawn from a suspect’s silence in a Police interview. 

But does such an inference automatically signal the death knell of the defence case at trial?

For those old enough to remember, section 34 was introduced to prevent ambushing by the defence, introducing defences in court that could have been mentioned a lot earlier, and then perhaps escaping investigation.

However, the landscape has changed somewhat now.

The Criminal Procedure Rules require defence lawyers to identify the likely issues at trial as early now as the First Appearance. 

Furthermore, a Defence Statement would be considered insufficient (subject itself to an adverse inference) unless the nature of the defence is explained in its body with significant detail. 

In R v Condron [1997] 1 W.L.R. 827 the Court of Appeal made it clear that an adverse inference could be rebutted if the facts not mentioned in interview, were mentioned promptly soon after, and not later than the trial.

Given the now early disclosure obligations on the defence, it perfectly possible for defence Counsel at trial to seek to rebut any adverse inference by adducing the Better Case Management Form at the Magistrates’ Court. 

Notwithstanding this, I am sure that many solicitors and police station representatives reading this could attest to their experience in interviews, with the interviewing officer vigorously trying to explain to their clients that their “no comment” answers will lead to certain conviction.

This is a practice is that is quite intolerably overbearing. 

It is quite proper of an interviewing officer to explain the meaning of the caution. 

However, it is quite another thing to start explaining in interview the legal effects of section 34. 

Arguably that could amount to an attempt to give legal advice, which is itself a criminal offence under the Legal Services Act 2007. I myself would love to have a ROTI read out in Court with the solicitor reminding the Officer that they are being recorded and they are perhaps at risk of committing a criminal offence themselves.

That example though, is perhaps telling of the undue and rigid weight the Police, and CPS, place on an adverse inference to justify their charging decisions. 

The problem though is that this can often lead to the situation where the Police do not actually investigate the alleged offence. 

I am sure most of those reading have a case right now in their filing cabinet where their client was interviewed before an MG11 statement was taken from the Complainant.

That itself could perhaps justify a refusal to answer police questions on the basis that disclosure is not sufficient. But is that something that could easily be taken advantage of in court?

However, an emerging problem is that even if there is comment made at interview or not, the Police do not always seem ready to investigate the reasonable lines of inquiry that come of it. A classic and recent example is of course Liam Allan, who in his interview mention the text messages that could show is sexual encounters with the complainant were consensual. 

This though is perhaps part of the wider issue of fairness that section 34 is too ignorant of. 

Many suspects in a Police Station are in a state of confusion, are high on drink or drugs, are coming off drugs, are mentally ill, or are just plain scared. The Health Care Professional at the Police Station is often no more than a nurse with medical training, and yet their advice is often relied upon in the first instance as to whether a suspect is fit to be interviewed. 

Some suspects, even if they are telling the truth, lack the articulacy to explain it properly, and convincingly. 

As a result, there are a whole host of reasons why a no comment interview is the best option. This perhaps makes it too dangerous to place so much weight on it, as the Police and CPS seem to do. 

What all of these problems ultimately equate to is that the legal representative at the Police Station is needed now more than ever. 

Andrew Kerr

 

How High Fiving Police Officers Turned Off a Jury

Not so long into my practice, I defended someone on serious drugs charges. The defendant had been charged with possession with intent to supply class A drugs and possession of a bladed article. I have to say, reading through the brief, I was not filled with hope. The defendant’s PNC was vast and pretty much all his previous convictions were for either possessing or possessing with the intention to supply drugs. The incriminating evidence in this case did not help either, and, just to add an extra twist, the defendant was actually seen on the custody suite CCTV disposing of the drugs. Over the years, I have, like so many of us, read a brief, reviewed the evidence and with an audible sigh, felt a little dejected imagining the prosecutors smug opening statement, the little digs of ‘and you’re absolutely sure your client doesn’t want to plead’ and long dramatic pauses staring at the jury every time the defendant responds to a question. Having to explain to my client the realities of the evidence in a sensitive way is tough enough without adding the fact that if convicted, they are looking at a pretty long stint at Her Majesty’s pleasure. This is a scenario that many defence barristers face all too often and as hard skinned as we may be, it's still a sad situation. 

But never underestimate a jury and of course the power of (slightly) dramatic advocacy (we are in England, after all). The jury are there to decide what version of the facts they are most persuaded by, even though your role as the defence is not to prove your client’s innocence. It’s all about doubt. Unlike a Judge who nods reassuringly with every one of your submissions, only to then go on and deliver a judgement against every point they had just nodded along to only moments before, a jury are open to an alternative set of events and this is a powerful thing. Especially, as I have found, where high-fiving police officers are concerned. 

Now, for the legal bit. 

Possession of a controlled drug with an intent to supply is an either way offence. The guidelines start with determining the seriousness of the offence, with Class A being the most serious, carrying a maximum life sentence, with an offence range from a community order to 16 years’ custody. Class C is the least serious carrying a maximum sentence of 14 years with an offending range from a fine to 8 years imprisonment. Class B carries a maximum sentence of 14 years’ custody and/or unlimited fine, Offence range: Fine to 10 years’ custody. Next comes the culpability, both the class of offence, sometimes known as the harm and the culpability (the role) are taken together to determine a more accurate level of potential sentence, and of course taking into account the other factors such as, character, nature of offence etc. 

In offences involving possession with intent to supply, the culpability is split into 3 main categories, these relate to offenders in a leading role, significant role and a lesser role. Some of the ways in which the role is determined is where the following are present: 

LEADING ROLE

• directing or organising buying and selling on a commercial scale;
• substantial links to, and influence on, others in a chain;
• close links to original source;
• expectation of substantial financial gain;
• uses business as cover;
• abuses a position of trust or responsibility, for example prison employee, medical professional. 

 SIGNIFICANT ROLE

• operational or management function within a chain;
• involves others in the operation whether by pressure, influence, intimidation or reward;
• motivated by financial or other advantage, whether or not operating alone;
• some awareness and understanding of scale of operation;
• supply, other than by a person in a position of responsibility, to a prisoner for gain without coercion.

LESSER ROLE

• performs a limited function under direction;
• engaged by pressure, coercion, intimidation;
• involvement through naivety/exploitation;
• no influence on those above in a chain;
• very little, if any, awareness or understanding of the scale of operation;
• if own operation, absence of any financial gain, for example joint purchase for no profit, or sharing minimal quantity between peers on non-commercial basis.

Once the category is determined, the question moves onto the nature of the controlled drug and the quantity. Again, these are separated in various categories, Category 1 involving larger quantities of different controlled drugs. Category 3 deals specifically with street dealing or selling directly to users and so is not necessarily based on quantity, and this is the category that this defendant fell into. Given the defendant’s previous convictions for the same offences, it was not surprising that the prosecution suggested that, were he to be found guilty after trial, they would be inviting the court to consider him as a significant offender. This meant that if convicted after trial, he would be looking at a starting point sentence of 4 years, 6 months and a category range of 3 years, 6 months to 7 years in custody. Whichever way you looked at it, the aggravating factors were compelling and he would certainly be looking at the higher end of this range. 

Now, for the ‘dramatic’ courtroom drama bit.

The defendant in this case had a comprehensive history of possession with intent to supply class A drugs, street dealing as classified under the Misuse of Drugs Act 1971. He had only 3 months prior been released from prison (on licence) following a commission of the very same possession with intent to supply offence that he was now indicted on. Needless to say, he had been recalled to prison as soon as he was charged. There were also suggestions that he himself was part of a prolific east London gang, known for recruiting young, mainly back youths to street deal. 

On the morning of his arrest, the prosecution case had been that the defendant had been stopped in a car registered in his name, having been observed acting ‘suspiciously’ by two police officers in marked police cars. Having stopped the defendant and carried out an initial search, they did not find anything. Having then conducted a fuller search of the car, the police recovered a knife behind the driver’s seat and this then led to a fuller search of the defendant where they recovered sealed drugs in his undergarments. 

The whole incident had been captured on the police officer’s bodycam footage. A very useful tool generally and very useful in this case as not only did it show the complete shock on the defendant’s face when they found the knife in his car but also captured the police officers high-fiving each other, with one saying, ‘we got him’ when they found drugs on the defendant and after they had placed him in the police van. To say that this did not go down well with the jury, was an understatement (one member of the jury actually looked like they had just swallowed a fly). And how the prosecutor didn’t see how this may be perceived by the jury was even more perplexing. This went against what the officers themselves tell the defendant (as captured on their bodycam) that the reason he was stopped was because there had been some drug dealing in the area and they were just checking. The fact that they waited until he was out of sight before high-fiving each other and practically breaking into a victory dance was not impressive and clearly showed, as I put it, some level of racial stereotyping. Unsurprisingly, the officer didn’t agree with my racial stereotyping point but then again, I never expected him to. He did, however, happily agree that the defendant did indeed look very shocked when he saw the knife, which was, quite frankly, music to my ears. I am sure that that high-five is where the jury turned and took notice of what the defendant had to say. Officers celebrating that moment, however trivial they may have thought it was, made for a powerful defence point and one which I came back to time and time again. It was in my cross examination of the witnesses, in my examination of the defendant and in my closing speech. Seriously, at one point, I thought the Judge was going to tell me to reign it in. It was my ‘if the glove doesn’t fit, you gotta acquit moment’ (on a much smaller junior scale, of course) - but I thought I’d leave the catchy rhymes to the American courts and also, I think it may have tipped the Judge over the edge. 

The defendant’s defence was simple, the drugs were not his. He had loaned his car to someone that he knew and when they had returned it a few hours later, he had taken the car to the gym and discovered the drugs by the gearbox. He saw the police and when he was pulled over, he panicked and concealed them. There was a gym bag with gym gear in his car. It didn’t help that the defendant took the drugs when he was being booked into the police station and disposed of them down the toilet. So, what do you do in this situation, the prosecution had thrown all they could at this, clear bodycam footage, phone evidence (although no burner phone was located and nothing incriminating on his phone), CCTV of the defendant disposing of the drugs, bad character application and the list goes on. But as a lawyer, you do what you need to do and choose your battles. I didn’t object to the bad character application and luckily, I had a client who trusted me to make that decision. The reality was that it would go in regardless. What’s more, and I am about to say something that you only whisper, I believed my client when he says the drugs and the knife were not his. And this became more apparent as we gathered information. 

Where was the burner phone (usually a phone not dissimilar to something that your mum might have had circa 1999 and not dissimilar to the kind Dom Jolly sported in Trigger happy TV), where was the quantity of cash? Why did he conceal the drugs and didn’t bother to conceal the knife behind his seat? Why was he driving a car registered in his own name (which his parents had bought him only a month earlier) if he was in fact making drug deals in an area known to police? Why did the phone he was found with have a call from his friend at exactly the time he said that his friend borrowed the car? and why would this ‘prolific’, significant and experienced drug dealer make so many silly errors? Especially when he was on licence. And why oh why did the two police officers high-five each other? Looking at these individually doesn’t make much of a compelling case, but propose enough of the alternatives and you may find the jury coming around. I took the extra step and decided to freezeframe the high-five and have my own staring contest with the jury. I also decided that the defendant should give evidence and be honest about his past and this did pack the powerful punch that I hoped it would. Never underestimate the value of honesty with a jury, a hardened Judge would have nodded sympathetically but wouldn’t have budged when considering their verdict but it is positive to hear the story of someone with such a difficult upbringing to try and better themselves and yes, want to actually turn over a new leaf. The defendant was supported at this trial by his parents and he had a job offer waiting for him at the time he was stopped and arrested. So, why would he risk it? My job as defence counsel was not to prove his case or to convince the jury that he was innocent but it was create enough doubt that the jury simply couldn’t be sure that the prosecution case had been proved beyond that doubt. Again, that high-five was the catalyst. 

So, what was the verdict? Well, this after all this, it would be an anti-climax if he were actually convicted. But yes, the defendant was (much to the shock of the prosecutor), acquitted on both counts. Much to the defendant’s shock too, I hasten to add. If this case taught me anything, is to never assume that you have a simple straightforward case, especially where a jury is concerned. Jury trials are unpredictable, full of emotion and, as someone who loves the thrill of advocacy, about as exciting as it gets at the Bar. Of course, exciting by lawyer terms. You only have to show a lay person the average court day to see that they would class it as about as interesting or slightly less interesting than watching paint dry. But then again, I quite like paint. 

Rabia Mir 

 

From Gloom to Zoom

On the evening of 19th March in consultation with Neil Mercer, our Joint Head of Chambers, I was asked to shut down Chambers. The following Monday, 23rd, the Government announced lockdown.

Our telephones were prepared, our laptops fully loaded...

What would happen next?

Like most of us, I sat at home for the first few days watching and listening to every new and alarming announcement. Life seemed very surreal and although there was much telephonic communication with colleagues and loved ones, feelings of isolation and gloom were hard to ignore.  We are, most of us, highly social creatures and suddenly found ourselves unable to interact by sight.

Then came ZOOM!

Initially it was just a word to me (not being the 'techy' sort), which I quickly became accustomed to using over the next few days although I had no real idea of what it was!

Since those darker times, I have attended many meetings using this device. My first attempts involved vision but no sound, then sound no vision, then nothing but muffled voices. I got there in the end and if I can ...anyone can.

As a secondary communication system I would say it is superb apart from that slightly uneasy feeling that your home is under scrutiny (nice wallpaper, Dear).

I also learnt by mishap to consider clothing and appearance before attendance. I am sure many have run upstairs last minute before joining a meeting in a desperate search for an ironed shirt of vaguely work description or suddenly remembered that their hair has developed its own eco style and may need (that almost redundant tool) ...a brush.

The system though definitely stands up to scrutiny as a communicative tool and seems as natural now as those other social platforms which are so familiar to me; what’s that, facelift and titter.....

Members of Chambers have been able to hold Conferences, Meetings and, lately, Remote Hearings. It is plain to see that there is much scope for the profession to adopt Zoom or a similar platform. Travel, for example, may become less necessary and that would particularly assist some if not many. Certain types of Court Hearings and Legal Services may also become accustomed to its regular use. Remarkable, given that this communication system was rarely used in our profession as recently as 4 months ago.

An oft used expression at the moment is 'the new norm'. I believe Zoom will continue to be a part of that norm for a long time to come.

Whilst physical meetings are sometimes imperative for all kinds of reasons, there is a strong argument supported by access and economical consideration to use Zoom as a reliable and acceptable alternative.

So there it is....

I am available to discuss all matters, be they large or small, and at the press of a button will appear to you from my 'library' or arrange for my Members of Chambers to hold meetings, conferences, updates, from their own 'libraries'.

Just give me a chance to change out of the Harley Davison T-shirt and I will be ever ready to welcome and greet you.

Strange days indeed.

Best Wishes to All

Gary Reed

Senior Clerk to Chambers.