Smokin'

Well, it's the first weekday of the new anti-smoking laws and already the smokers in Chambers are plotting ways to flout the ban. We used to have a smoking room but now its patrons are being forced out onto the streets like the reviled social pariahs they are. Before the ban came in there was much discussion as to whether a set of chambers really constitutes a workplace. The answer seemed fairly obvious to the non-smoking majority - we may be self-employed but we employ clerks, admin staff and cleaners so, yes, Chambers is a workplace. After much huffing and puffing about the Nanny State and the freedom of the individual (and, in fairness, making some good points on both those topics), the smokers reluctantly agreed.

This afternoon I caught one die-hard smoker sheltering from the rain and having a sneaky fag in the doorway to our building, which is expressly forbidden, on pain of a public flogging. I grinned at him in a "your secret's safe with me" way and he looked a bit sheepish. We then started chatting about the maximum penalties for smoking in prohibited places, not displaying a "no smoking" sign and other related criminal acts. Neither of us had a clue, though I think I remember something about a £50 fixed penalty. Note to self... must take more interest in the law. Especially laws on which everybody seems to have a very strong opinion. Everybody apart from me, that is. I'm glad that my days of waking up stinking of smoke the morning after a night out will soon be a distant memory, but in the great scheme of things, I'm almost ashamed to admit that I lost interest in the smoking debate ages ago.

Out with the old, in with the new

Not only does our fine nation have a brand new Prime Minister, but I arrived in Chambers today to find an email about a brand new form in my inbox. I am, of course, referring to the Plea and Sentence Form, which prosecutors will need to fill in before the Plea and Case Management Hearing as of two days ago. Good old Lord Goldsmith - just as I was getting my head round the voluminous new PCMH form he spices our lives up again by giving us all yet more work to do and judges yet another reason to give CPS an ear-bashing when the inevitable happens and people forget to fill it in. Apparently, judges aren't getting enough input from the prosecution when it comes to sentence. It used to be enough to open the facts of an offence, deal with previous convictions, sentencing powers and, if relevant, point out that the defendant is liable to banged up indefinitely if deemed dangerous. Now we will have to list the aggravating and mitigating factors, inform the judge of sentencing guidelines and relevant case law and say whether or not there is a victim impact statement.

All of this will take time and effort, which won't be reflected in either CPS salaries or counsels' brief fees and which will be wasted in the event that the defendant pleads not guilty at the PCMH and is acquitted at trial. In addition, most judges are perfectly able to seize on what aggravating and mitigating factors there are, not to mention what sentencing powers they have, without counsel writing it all down in a form for them. In complex cases where they require input from counsel, they aren't generally shy about asking for it and in such cases, most advocates would anticipate this in advance of the sentencing hearing. Finally, I can't help but feel bad about the huge amount of extra paper that will be used. Will somebody please think of the trees?

Well that's my moan of the day over. As always, any comments welcome!

Time flies...

Dear me, has it really been over a month? Sorry to be gone so long. I was away on holiday for a couple of weeks (very decadent, I know) and in the three weeks I've been back I've been sent all over the place and never seem to get round to updating my blog. I suspect that this is how clerks pay barristers back for taking time off - booking us into work miles away.

So what's new? Again, we're being reminded of the crisis in our prisons, which are now so over-crowded that court cells are on standby to house people in custody. All this week, the courts I've been in have been delayed by prisoners being brought from the other side of the country and arriving late. Mind you, there's never been a better time to be facing sentence!

One of the things keeping me busy lately is my newly-started civil practice, which is a mixed bag and now accounts for about 10-15% of my work. As many people warned me, it is a steep learning curve. At times I feel like a pupil again but I've got a couple of unofficial mentors in chambers who are a great help and, by and large, I'm enjoying it. Not as much as I enjoy anything involving sex, drugs and violence, but it's early days yet. One of the things I really like about civil work is that the briefs tend to be better prepared (sorry to any criminal solicitors - I know you don't have the funding you need) and there is no doubt that the money's far better. Nothing like selling your soul...

"Fat chicks are more grateful"

I hope that this report of a defence barrister's conduct in a rape trial contained a lot of inaccuracies. It's often unattractive to run consent when the circumstances of an alleged rape are horrible (in this case, the two 16-year-old victims are said to have had their phones taken then been repeatedly raped by three younger teenagers in a park), but if you're defending you have to follow your client's instructions. There is, however, a way of doing these things in a sensitive and professional way, and suggesting that the complainant was so fat at the time that she was grateful for the defendant's attention seems unlikely to win many jurors over!

Of course, the press frequently get things wrong or out of context - why, a few years ago the beagle herself was described as "daft" by one local rag! However, at face value this seems to be a glowing example of a barrister going far too far and giving the rest of us a bad name.

Shock findings

Apparently, magistrates ignore expert reports when sentencing young offenders, preferring to rely on their own "common sense" and defendants' backgrounds and previous convictions when determining sentence. Even more staggeringly, young offenders admit lying to both the courts and other bodies, like Youth Offending Teams, in an attempt to avoid harsher sentences. Jo Phoenix of Bath University, who conducted this ground-breaking research, fears that magistrates are relying on "little more than stereotypes" when making decisions. Obviously, they should be placing more importance on these expert reports, notwithstanding the possibility that the defendant has lied to the author in the hope of receiving a lesser sentence.

I'm not saying that magistrates always get it right - far from it. However, whilst they shouldn't just ignore YOT reports, they ought to be allowed to draw on their own experience and use their own discretion too. Otherwise there's not much point having them at all. Now there's a thought...

Thankfully, at least there is only reference to this being a problem in the Youth Court, so I can continue in my blissful delusion that the Crown Court is untroubled by such horrors as dishonest defendants and judges purporting to use their own common sense.

Straight from the horse's mouth

Unusually, I didn't read the paper until yesterday evening so missed the story about the Michael Symes, a juror on the terrorism trial. I've often wondered how jurors cope with being on long trials both in terms of the inevitable disruption of their normal lives and the strange experience of being thrown together with eleven other random people for weeks or months. Ever since lawyers became eligible for jury service, I've always had a hankering to be summonsed. I'm yet to be convinced that having lawyers and judges on juries is an entirely good idea but I'd love a behind-the-scenes glimpse of what goes on in jury rooms.

The closest I'd previously come to this was when a friend's mum was called for jury service a couple of years ago. She told me that they'd found the defendant not guilty as they were only about 80% sure of his guilt, which was reassuring as it showed they'd actually listened to directions about the standard of proof. More alarming was that she and her fellow jurors had agreed that the defence barrister was pompous and had an annoying voice and that the prosecution barrister had tried too hard to suck up to the jury in her speech. Food for thought...

Despite the worrying reports of jurors pulling sickies and generally dragging proceedings out whenever possible, it seems that the terrorism trial jurors took their responsibilities seriously and, broadly speaking, the article reaffirmed my faith in the jury system. Interestingly, Mr Symes was glad not to have been told of the links between the defendants in his case and the July 7th bombers, saying that it was "probably best to be objective in evidence". When the law changed on adducing defendants' (and others') bad character many criminal lawyers were worried that this objectivity would be lost, so it was nice to see that in this case the right decision seemed to have been taken.

I wasn't sure what to make of his desire to be a full-time juror though - what's the betting he applies to be a magistrate in the not too distant future?

Sex, lies and videotape

Or DVDs, actually. Today I finished a very harrowing trial involving a series of sexual offences against two children; what is commonly referred to as a "filth case". These are always depressing whichever side you're on and whether the defendant is found guilty or not as there is usually some deeply disturbing family backdrop to the whole sorry situation. This case was no different - the children had clearly been severely damaged long before my client came on the scene and thoughtfully undertook to give then numerous practical lessons in anatomy. My client had a very sad childhood history himself involving neglect, abuse, a string of foster placements and several youthful brushes with law. The evidence was fairly overwhelming but he strenuously denied all the allegations. The jury were out for just over an hour before he was convicted of all six counts. He told me afterwards he had always expected to be found guilty, though maintained that everybody was lying.

The allegations weren't the most sordid I'd ever come across but for some reason, I found the case particularly heavy-going. After the DVD of the first kid had been played (young and vulnerable witnesses are generally filmed being interviewed by police officers rather than making statements, then the video/DVD is played in court, then they are cross-examined over a live videolink) one of the jurors asked for a break, which didn't seem a great sign! Anyway, I did my best throughout the trial and I was pleasantly surprised that my punter didn't come across all that badly when he gave evidence, but none of it was enough to save his skin.

Now why, exactly, am I bothered about this? I worked as hard as I could have done and, though I'm sure there are many who are more able than I am, I think I did a reasonable job, so it's not a case of regretting something in particular that I did or didn't do in the trial. And although I love winning trials (we all do, however gracious we manage to be about it), losing one doesn't normally depress me like this. Being a hardened professional (hmmm...), I don't really feel too bad about cross-examining the kids and calling them liars, though I didn't take any great pleasure in it either. Maybe it was just the sadness of the whole situation. Or maybe I'm going soft. People always ask barristers how we can bear to defend sex offenders and I always give the same answers that I expect everyone else does - innocent until proven otherwise, right to representation, equality of arms, etc etc. Today, however, I'm glad that I'm still junior enough for nasty sex cases to come along relatively infrequently.

On the plus side, my dabbling in the world of civil law is going quite well ("Turbulent times...") so perhaps my days of this sort of stress may one day be over (quite possibly only to be replaced by different sorts of stress, but variety is the spice of life!). Even better, we are one day away from a bank holiday weekend and Mr Beagle and I are going away for a couple of days. Hopefully I'll return full of energy and enthusiasm and my next post will be a departure from all this moaning and whining!