Would your lordships give me a moment?

I'm off to the Court of Appeal in a couple of weeks to appeal against a sentence and today I received the transcript of the original hearing. I always cringe slightly to see my own words in print, but on this occasion it was even worse than usual. The Judge asked me a technical question to which I didn't know the answer and the transcript goes something like this:

HHJ Nails: Miss Beagle, can you assist me as to what my powers are?

Miss Beagle: Thinking on my feet, I cannot, but if your honour would give me a moment, I'll look it up.

HHJ Nails: Miss Beagle, I simply want to know under which section of the statute I should make the order. Does it make a difference whether I make it under section x or section y?

Miss Beagle: [Fighting the urge to say, "well you're the Judge, you tell me what the law is, you tosser!"] I'm afraid I hadn't previously addressed my mind to that point, may I have a...

HHJ Nails: Well let's see if Mr Opponent knows the answer.

Mr Opponent: Yes, I can assist, can I refer your honour to page x of Archbold... [reads aloud in very smug voice, sadly undetectable in the transcript]

HHJ Nails: Thank you very much. Do you want to say anything else Miss Beagle? No? Right then...

Of course, the order being discussed is the very order that's now the subject of an appeal. As readers can imagine, I'm really looking forward to my audience with their lordships!

The joy of appeals

Another stunning (albeit insignificant) victory today, this time in an appeal against sentence. When people are convicted and/or sentenced by a Magistrates Court, there is an automatic right of appeal to the Crown Court. This results in many appeals that are doomed to fail, since no grounds of appeal are needed. (The same is not true when people are convicted/sentenced in the Crown Court, as they need to seek leave to appeal to the Court of Appeal. In order to do this, there must be grounds for the appeal.) Appeals from the Magistrates to the Crown Court take the form of a rehearing and are very badly paid so most of us try to avoid them like the plague. Happily, my case today was one of the few appeals from the Mags to actually have some merit, the appeal was allowed and the sentence was reduced by about 25%. Even better, I was finished by 11.30, leaving plenty of time to catch up on papers (or update my blog, check my email and drink tea) before leaving for the weekend. If you're going to have a low-earning day, it's some comfort if you finish early. Better still was the fact that a barrister who has really irritated me in the past was at the same court about to start an appeal against conviction against a man who had chosen to represent himself - the dread of all barristers! When people represent themselves in court, you can guarantee the process will take twice as long and be twice as tortuous. This is mainly because litigants in person (as we call them) tend to go on and on about irrelevant points and judges are very reluctant to interrupt them for fear of creating an impression that people do not get the opportunity to "have their say". It's very difficult being against them because, contrary to what many people may think, opponents do generally talk to one another before going into court to see if they can come to any agreement about any of the issues and to alert one another to some of the points they are going to raise. Trying to persuade a litigant in person that you need to talk to them really gets their backs up. I once prosecuted a woman who defended herself and every time I tried to talk to her she burst in to tears and begged me to leave her alone. That was a long day. Rather my irritating colleague than me!

A bit special

I had a trip to a nearby Magistrates Court today to represent a woman charged with drink-driving. "Wow, how thrilling!" I hear you thinking, and I accept it wasn't the most exciting case I'd ever had. She pleaded guilty but advanced a special reasons argument. When somebody is convicted of drink-driving, disqualification for at least a year is obligatory unless there are special reasons, in which case the magistrates can impose a very short ban or 10 penalty points instead. Special reasons are typically found in cases where people have driven as a result of an emergency and/or driven a very short distance in circumstances where nobody was put at risk. In this case the defendant was seen by police reversing out of her own driveway and maintained she never intended to drive any further than than. Happily, she was believed and the magistrates found that there were special reasons not to disqualify for the standard period. Instead, she was banned for 7 days. "Yes, yes, but what's the point of this story? And what is the legal beagle doing fighting traffic cases in the Mags in the first place?" the reader may ask. Well, to answer the second question, in these hard times I'm not too proud to do a bit of Mags work (especially if, like this, it was privately paying!) and in answer to the first, my client was very grateful for all I'd done for her. This might not seem like much but other lawyers will know that most of the time clients show, and doubtless feel, no gratitude for (or even recognition of) all the hard work that has been done on their behalf. So when a client recognises that they've had a good result and says "thank you" for your efforts, it gives you a lovely warm feeling inside.

Is my practice collapsing?

That's the question all barristers ask themselves from time to time! When we are busy, we do nothing but moan about the hours we work. I frequently annoy Mr Beagle by detailing how many hours I worked the previous evening - and after a full day in court, mind! - or canceling plans we'd made because I've been landed with a tonne of work for the next day. When we are not busy and have days out of court, we fret that there is no work around and that we must have done something to annoy our clerks or solicitors. Suspicious that others may have pilfered our work, we obsess about our colleagues' workloads. Only assurances that loads of other people are out of court too and/or Messrs Bloggs & Co have got us ear-marked for a big case can placate us. After a couple of weeks of panicking about being over-worked, I'm now panicking because this week has been rather slow! Out of court on Monday, just a couple of mentions yesterday and today, plus I'm out of court tomorrow. How I yearn for the middle ground! I've even managed to get up to date with Advices and other paperwork, so I really have nothing useful to do tomorrow. Except worry. We barristers are anxious creatures beneath our confident exteriors.

Panic over rape conviction rates

I know this story is a few days old, but I've been too busy until now to comment on last week's hand-wringing over conviction rates for rape. The issue is, for obvious reasons, an emotive one which inevitably means that people approach it with less detachment and rationalism than, say, burglary. The statistic being bounced around was five percent, or one in twenty. This, we are told, is the percentage of rape cases which result in a conviction. Numerous solutions are being discussed, the most likely one being a change to the law on consent. Women (and yes, I know male rape exists, but recent reports have concentrated on female victims) who are so drunk they'll agree to anything would not be giving valid consent to sex. At first blush, many people would see this proposal as a sensible way of dealing with a horrifying problem. But there are a number of other factors to be taken into account.

Firstly, that statistic refers to allegations of rape, not cases which end up in court. There are a number of reasons why an allegation might not make it to court. These include unwillingness to report the matter to the police in the first place, a failure to identify or apprehend the alleged rapist, a total lack of evidence of any crime or indeed strong evidence that it cannot possibly have happened. If all of these hurdles are overcome and there is a trial, there are still myriad reasons why the defendant might not be convicted. In all criminal trials, the prosecution have to satisfy the jury so that they are sure (we used to say "beyond reasonable doubt") of the defendant's guilt. If they are not sure, then they must find him not guilty. The standard of proof in rape cases is no different. As unpalatable as this is to many people, just as there are people who make false complaints of burglary, robbery or violence, there are women who make false accusations of rape. There are many reasons why people do this - shame and regret after a one-night-stand, dislike of a stepfather or fury at an ex-partner to name but a few. Allegations are easy to make and enormously difficult to resile from once made. False allegations not only place innocent men in grave danger, they may well also decrease the chance of genuine victims having the confidence to report rape or being believed if they do report one.

As I touched on earlier, huge problems arise in cases where alcohol in involved. Historically, the law has been that drunken consent is nonetheless consent. Clearly, if somebody is so drunk they are barely conscious or unaware of their surroundings, they are not capable of consenting to sexual intercourse. Matters are set to become more complicated in cases where women only consent because they are drunk. There is much talk of how men who "take advantage" of women in this position should be liable to be convicted of rape. But so many people, male and female, get drunk and behave in a way that they wouldn't if sober. Even if we haven't done so ourselves (the legal beagle makes no admissions either way) we all know somebody who has got hammered and told their boss what they really think of them/sung on the karaoke machine/slept with somebody who they wouldn't have looked twice at before but who seems irresistable after 15 G&Ts. Men who sleep with women who would be out of their league were it not for the fact that they were drunk are certainly unchivalrous. But are they really rapists? And apart from cases of drink-spiking, who has made the decision to get drunk in the first place?

Nobody could sensibly argue that women are to blame for being attacked, whether they are drunk or sober, dressed in a mini-skirt or a pair of tracksuit bottoms. But we need to take some responsibility for the decisions we make after drinking our inhibitions away. Doubtless, there are rapes which go unreported and defendants who are wrongly acquitted, and this is tragic. But the worst response is to think with our hearts rather than our heads and let emotion take over from rational analysis of the evidence.