Archive | Criminal Law RSS for this section

SEEN PYRO BEING USED AT A FOOTBALL MATCH? THINK IT LOOKS FUN?

 ATTEMPT TO TAKE PYRO INTO A FOOTBALL MATCH AND THE NEXT THING YOU COULD BE SEEING IS THE INSIDE OF A PRISON CELL

There is no doubt about it, the use of pyro to some fans is exciting. Photos of smoke bombs and flares being used at European matches give the impression of a colourful and high adrenaline crowd of fans.

Whether or not the use of smoke grenades (or plumber’s smoke tabs), flares and fireworks gives the game a better atmosphere, they are banned from English football, and without a doubt the courts do not see that same colourful, high adrenaline atmosphere. The starting point for a court considering the sentence for someone who has attempted to enter a stadium with pyro is 3 months in prison. In many cases it is very difficult to persuade the courts to come down from this 3 month figure. Add onto this the fact that it is highly likely that a court will impose a football banning order for at least 3 years (as this is the minimum that a court can impose) and may go as high as 10 years, and a fan’s days of watching football anywhere but in their living room for at least the next 3 years are over. The prison record doesn’t look good to any employer, and any chance of coaching or refereeing even a local kids league is given the Red Card due to the fact the offence of possession of the smoke grenade and the prison sentence and the football banning order will all appear on a Criminal Records Bureau (now Banning and Disbarring Service) check.

Look again at the wording in italics above, a fan doesn’t have to let off a flare in the stadium to fall foul of the law, mere possession on entry is sufficient. The law doesn’t distinguish between smoke grenades, flares and fireworks, they are all treated with the same severity. Nor does it distinguish between the possession and letting off the pyro.

The situation for under 18s is even worse. Possession of a smoke grenade or flare in any public place is a criminal offence. Hence a fan who is under the age of 18 and who has a smoke bomb in their pocket as they walk through town or on the train on the way to a match is committing an offence. This places some youths in a very difficult position. Imagine the scenario, on the coach on the way to the match, the youth succumbs to peer pressure from a fellow fan to take a smoke grenade “come on, it will be fun, look you take the blue and I will take the red, its only 3 quid”. The youth then exits the coach and decides that the smoke grenade is not a good idea and approaches a steward or police officer to ask how to dispose of the smoke bomb. At that stage they are admitting to committing an offence, they are in a public place and have a smoke grenade in their possession! A 15 year old with no previous convictions, who has never been in trouble with the police before, suddenly finds themselves arrested, in a police cell and facing a criminal record. Even a fixed penalty notice or reprimand given in the police station will appear on their CRB check. With competition for university and jobs so competitive for youths, a CRB will probably means that this youth goes to the back of the queue. Oh and they will no doubt be banned from attending football matches, even if they do not end up with a football banning order issued by the courts as the matter was dealt with in the police station, the police share their arrest information with the football club so the club will issue their own ban.

As a lawyer representing football fans, I have concerns about all fans being arrested for pyro possession and use but in particular the criminalisation of youths. Whether or not I agree with the law as it stands, until Parliament changes it, possession of pyro remains an offence. For this reason I have worked with Northamptonshire Police to set up a trial of pyro amnesty bins outside the Sixfields Stadium at certain matches over April and May 2014. Northampton Town and Coventry City Football Clubs have given their full support for these bins, and it is hoped that this will not only prevent pyro being taken into or used in Sixfields, by home and away fans, but also will promote the fact that pyro is illegal at football matches.  This leaflet explains more.. Are you a footie fan? Do you know there are special laws relating to you?

The amnesty bins will be placed outside the turnstiles and will be highly visible, and will not be monitored by police of CCTV, nor will any pyro inside be checked for fingerprints or DNA. But anyone who is caught in possession of pyro inside the stadium will be arrested. With the pyro bins outside there will be no excuse for anyone to have pyro inside the stadium. Lets hope that these bins are a success and that it will help prevent this needless criminalisation and banning of fans.

Particularly if you are a parent or carer for a youth who attends football matches, please pass the message to them that pyro is illegal and the inside of a cell in a youth offending institution could be exactly where they are heading if caught with pyro…and that it not scaremongering or exaggeration…its reality.

Here is the leaflet advertising the trial Northamptonshire police pyro amnesty bin trial-3.   The amnesty bins will be in place at the Sixfields Stadium at the following matches:

  • 18th April 2014 – Coventry City v Swindon Town
  • 21st April 2014 – Northampton Town v Portsmouth
  • 26th April 2014 – Coventry City v Wolves
  • 3rd May2014 – NorthamptonTown v OxfordUnited

Any queries about the amnesty bin trial can be directed to me at gurdena@btinternet.com or via this blog,  or Pc Nick Price at nick.price@northants.pnn.police.uk

Can You Identify A Human Trafficking Victim?

Human trafficking victims are not only found chained to a bed in a brothel. In our daily lives we come across victims without even knowing it.

This FREE course discusses the main types of human trafficking in the UK and Europe including trafficking for:

  • Labour

  • Benefit fraud

  • Organ Harvesting

  • Domestic Servitude

  • Adoption

  • Sex

  Are you able to identify if the person who comes to you as a client, detainee, inmate, service user is also a victim?  Are you aware that they may be entitled to additional protection (including accommodation and financial support) due to their possible victim status?  Are you able to identify the signs of human trafficking?

This training session, which is funded by a charitable grant is provided by Migrant Help, free of charge. It not only provides information on the human trafficking indicators but also covers the additional protection and support available for potential victims of human trafficking and how to access that support.

Who Should Attend? Anyone who may come in contact with potential victims – members of the legal profession, law enforcement, law students, advice agencies advisors, police station and prison visitors, health professionals, probation officers, prison officers, magistrates and judges, and anyone intending to enter any of these professions.

Speakers:  

  • Alison Gurden, Barrister, 1 Grays Inn Square Chambers. Bar Council Pro Bono Lawyer 2012. Specialist in criminal justice issues and a trustee of Migrant Help.
  • Human Trafficking Victim Advisors, Migrant Help. Migrant Help is a Home Office/UK Human Trafficking Centre recognised first responder for potential human trafficking victims

Venue: Friends Meeting House, Euston, London. Date: 15th January 2014. Time:  11am to 1pm, or 3pm-5pm or 5pm-7pm

2 CPD Points Accredited.

To Book: contact Alison Gurden gurdena@btinternet.com 

or via Grays Inn Square Chambers 0207 405 0001

Is the detainee a suspected offender, a human trafficking victim, or both? The Dilemma for Custody Sergeants, First Responders, Appropriate Adults and Police Station Reps

The portrayal on TV of human trafficking investigations usually involves large scale police operations where a house or warehouse is raided and thirty to forty human trafficking victims are discovered chained to beds or walls, in the dark, and the victims are emancipated and in poor health. I have worked with law enforcement on human trafficking operations around the World, and this portrayal is rarely the reality. The whole point of human trafficking is to exploit the individuals, hence they are unlikely to be found in a state where they cannot work for their traffickers or enforcers due to the fact they are chained up all day and in very poor health. Most victims of human trafficking will be found outside in the local community or working in factories or fields. Many will only come into contact with the police due to the fact they have been suspected of committing a crime or are the victim of a crime. Their first contact with the police will be a response officer or a neighbourhood PCSO. Human trafficking victims are warned by their traffickers not to speak to the police, and may come across as hostile.

At a meeting with frontline police a few weeks ago, we discussed the daunting task for a custody sergeant in terms of identifying potential victims of human trafficking in the cells. The decision that the custody sergeant makes in the first few hours after an arrested person is presented to them at the custody desk can make or break a human trafficking investigation. This may sound dramatic, but unfortunately it is the reality.

For example, a 12 year old child is arrested for pickpocketing. The child states that they do not speak fluent English. The child is entitled to an appropriate adult in custody, the child provides a number which she says is her dad’s number. A call is made to dad who agrees to come down to the custody suite. On arrival he is polite and apologetic for his daughter’s behaviour and asks to speak to her. He then speaks to her in their native language, says that his daughter is ‘Sorry’. Is this a concerned father and contrite daughter, or a trafficking victim who has been told by her trafficker or enforcer that if she says anything he will hurt her younger sister?

The language spoken by the child is not one regularly heard in the police station, an interpreter has been requested but will not be available for a few hours, the custody sergeant is being pressurised by an officer who is due to go off shift soon and wants to interview, it is now after midnight, and the child has already been in custody for two and a half hours. Dad has stated that he speaks perfect English and is happy to interpret, he doesn’t want his daughter detained in the cells any longer than absolutely necessary, and as he is present he doesn’t see the need for lawyer, his daughter has admitted to him that she stole the mobile phone as she wanted the same type as the other girls at the school and he had told her she had better save up for one, but she stupidly saw a phone hanging out of someone’s jean pocket and decided to take it.

Due to the nature of the offence, the father’s concern and his sensible approach, it may be the best decision that the interview go ahead with Dad interpreting, hence the child is not detained at the police station late at night, and the matter can be resolved that evening. But, if Dad is a trafficker or enforcer, throughout the interview the child could be saying “he makes me steal” for which Dad’s interpretation may be “I am sorry, I apologise, I know it was wrong”.

In the latter scenario, the child may receive a reprimand or final warning for an offence for which they have a defence, but just as important, the child will see the police working with the trafficker or enforcer and not protecting her and will be highly unlikely to ever trust the police again. Add into this mix the fact that the police will release a victim back into the hands of a trafficker or enforcer, igniting huge safeguarding issues.

Those who work on human trafficking investigations are aware of the large amount of false documentation often found in premises used to house trafficking victims. This documentation is usually good quality and hence it can be simple for a trafficker to produce documentation indicating that they are the child’s father – especially in cases where the child has also been used for benefit fraud as well as pickpocketing.

Contrast the above scenario with the case of three detainees who tell the police that they are aged 15, when in actual fact one is age 20 and actively working as an enforcer of the other two. If a custody sergeant decides that there is a likelihood of the detainees being trafficking victims, and treats them all as victim, this may jeopardise any investigation into their criminal activities and again, the trafficking victims may see the police as being ‘soft’ on their enforcer and assume that he has paid off the police (as is common in many of the Origin countries for the trafficking victims). Hence the enforcer’s victims will not be open to the police, and the enforcer may be released into the hands of the social services and have disappeared within 24 hours.

These are just two of the many scenarios which a custody sergeant may face, there are many others. For example if a potential trafficking victim is kept in a cell for a few hours while the investigating officer/arresting officer decides whether that detainee is a victim or potentially involved in criminal activity, or both, any trust that the victim had in the police may have been lost by the police placing them in the exact same situation as the traffickers – locking them in a room and telling them not to worry as they are safe. The alternative is to treat the detainee as a potential victim, but this may have serious implications for any future investigation and prosecution if it can be argued that even the police did not suspect them as being involved in criminal activity. Ultimately this always has to be an operational decision, but it is a decision that should be made with awareness of the issues surrounding potential human trafficking victims.

Hence, while each police authority may have set up specialist units to investigate human trafficking, it may be the custody sergeant who plays the most important part in making or breaking the trust of a human trafficking victim. I do not, for one minute, suggest that custody sergeants and initial arresting officers are not going to recognise that in some situations the relationship between a child and a appropriate adult does not seem right, but taking the leap from this to recognising a potential human trafficking victim may be difficult.

Migrant Helpline is a Home Office/UK Human Trafficking Centre recognised first responder for potential human trafficking victims and offers free training to frontline officers and custody sergeants on identifying human trafficking victims and the current human trafficking trends. For more information contact Alison Gurden on gurdena@btinternet.com 

To strike or not to strike? Why Criminal Lawyers should make up their own mind and not be swayed by others.

Having read many comments and blogs over the past few weeks regarding whether the Criminal Bar should refuse publicly funded work, effectively to strike, I have decided to weigh into the debate.

Firstly, make no mistake, I am appalled at the way the MOJ have behaved towards the legal aid consultation, and I believe that Chris Grayling has made it clear that he knows nothing about criminal practitioners, nor does he want to. His actions and comments have ranged from deceitful to childish, and in the main have been nothing to do with supporting the profession which works long hours day after day to represent those who are unfortunate enough to find themselves in the criminal courts, but instead have been everything to do with trying to win the support of the Middle England voters who have been fotunate enough to have never been involved in the criminal justice system.

However, I think Chris Grayling’s actions should be put to one side when considering whether the profession should effectively go on strike. We are professionals and should weigh up all the pros and cons of refusing work, just as we would weigh up the likely outcomes of taking a certain course of action in our criminal prosecutions or defence. I am concerned that an overbearing attitude is creeping into the profession, which if we are not careful will create a ‘either with us or against us’ scenario. Particularly for younger members of the profession who are worried about whether their future work will dry up if they do not support the ‘strike’ action, this is unhealthy. As far as the Criminal Bar is concerned we are Independent. We hold this independence out to be one of our strongest features, and yet I am hearing daily of counsel who are being told that they must strike ‘or on their head be it’. All of us run an independent practice, and therefore we should be able to make our own decision on whether to refuse work.

I will not strike. I have made this decision on the basis of my principles, I do not want to see a defendant having to represent themselves, or be represented by a lawyer who is not their lawyer of their choice, due to the fact their lawyer is on strike. I am prepared to work to rule, and only work from 9 to 6 on my legally funded cases, and then to justify to the court why a case is not prepared, but it should be down to me to make that argument to the court and not the client.

I accept that financially, the MOJ’s cuts will make it very difficult to all of us criminal practitioners to survive, and I believe that a work to rule may make the MOJ realise that in reality cases are going to take longer and so will be just as costly. Not just in payments to counsel (in cases where we do actually receive payment for the extra days a case will take) but also in the extra court time taken to deal with each case.

I have seen much written about the cuts in recent weeks, and I am concerned that the ground we made with the public with regard to the damage that the MOJ proposals could do to them, is now being lost by the constant reference to the new proposed fees in criminal legal aid. The public do not understand that most of our daily rate does not end up in our back pocket, nor that we often have to wait over a year for the payments.  None the less, I fear that focussing on the money is causing us to lose ground to the MOJ on public opinion.

I also represent claimants in the employment tribunal (mainly thought the Free Representation Unit and the Bar Pro Bono Unit) and none of my clients earn as much as the daily trial rate in either the Magistrates or Crown Court. Try telling a client who has worked 40 hours a week on the minimum wage (£247.60 gross), for five years, only to be told that they are being laid off, and so are still classed as employed but can only receive the Job Seekers allowance per week, that earning over £100 per day for a trial is tough. This is not an extreme example, these are cases that I am seeing day after day, of people who are working for less than minimum wage or who are being told that their employer cannot afford to pay their salary for the month. These are the public who we should be trying to get on our side, not alienating. Talking about our fees will not help our cause, the country is under austerity measures, the NHS is at breaking point and everyday people are being made redundant or told that they need to move from their home as they have a spare room. We are not the only ones who are suffering, and we should try to connect with those who are suffering, after all for many of us they are our clients, whether criminal, employment, housing or immigration.

It is my personal opinion that a strike will alienate the public, and will just give Chris Grayling more ammunition to throw at the criminal profession. I can just see the headlines of articles in the Daily Mail and the Telegraph about how criminal defendants are having to languish in jail, awaiting trial as their greedy lawyers are striking!

Hence, for my part I will not be striking, nor will I be telling anyone else what to do, or criticising them for their decision. The criminal professions joined together like never before to fight the first MOJ consultation, it will be such a shame to see that union fragment into a blame culture. That would play right into the MOJ’s hands. We should be united in making sure that we reply to the 2nd Consultation, and in supporting each other..it is that which will make us a respected profession and also create an environment where, no matter what happens with the MOJ cuts we continue the support as much as we can.

BANNED!

A football banning order affects much more than just watching Premier or League football on a Saturday afternoon

With the new football season in full swing, fans who are banned from attending home and away games of their team are asking exactly how far their ban extends.

Most fans who are under a football banning order are aware that they can’t go to watch their own League team or England, either home or away, and that they need to hand in their passport to the police whenever England are travelling overseas. Some fans are also subject to handing in their passport when a Champions League match is being played overseas. But many Banned fans ask me whether they can attend any football matches? In general, my answer is that if it is anything more than watching their local pub team play on a Sunday morning, or their son’s school team, then probably, No, they cannot!

The law in this area is very unclear, and is open to a mix of interpretations. A Football Banning Order prohibits a fan from attending a ‘Regulated Football Match’, and the definition of ‘Regulated Football Match’ is an Association match in which one or both teams represent a club which is a member of the Football League, the FA Premier League, the Football Conference League, the League of Wales, or represents a country or territory.

The Under 21s Development League (or Premier League as it seems to have been renamed to suit those making money out of the League) is becoming increasingly popular with fans, especially as for many it has identity with their own Club, is played in the same stadium and is a Cup competition. Unfortunately, the games, including the Cup qualifiers may be classed as Regulated Football Matches and fall under the ban. For the very reasons that many fans are taking an interest in the League, the bans will probably apply – the purpose of the ban is to prevent a fan from attending football stadiums and mixing with other home and away fans.

There is an argument that the ban not apply to teams which are not part of the Leagues mentioned above, and that if the Government intended to include all matches played, it would have said so in the legislation. Add to this the fact that previously the restrictions included all matches played at the home ground of a Club which is a member of one of these football leagues, but this was changed in 2004 to the above definition. In my view it could be argued that this change in definition means that the Government no longer intended for all games played in these grounds to be included. However, the problem faced by fans is that this will possibly be a legal argument that will not be accepted by a local magistrates court, and it is the local magistrates who will determine whether a Banned fan has breached their Football Banning Order. Clearly the other side of the argument which will be put forward by the State is that the Under 21 team has the same name as the Club and so ‘represents the Club’. It seems that the UK Football Policing Unit do not have the answer either, and football intelligence officers I have spoken to are also unclear as to whether these Under 21 games fall within the ambit of a football banning order.

Hence there is no easy answer to this question. A fan who wants to take the risk may end up trying to persuade a magistrates court of a legal argument, and will probably end up having to appeal to the High Court for the legal definition to be determined. Such appeals are lengthy and expensive and (with the proposed reduction in legal aid) legal costs are unlikely to be covered by legal aid. On the flip side, fans should not be prevented from attending these Under 21 games on the basis that they fear they may be prosecuted as the law is unclear.

And as for Women’s football, since the Olympics the Women are receiving attention like never before, and from my own personal opinion this is long overdue..but many of the women’s games (and definitely the women’s FA Cup) may also fall within the term ‘Regulated Football Match’ in a football banning order and so I’m afraid attendance to watch the women will have to wait until the end of a ban, unless the fan wants to run the risk of prosecution for breaching the ban.

So how can a Banned fan watch football? This depends on the wording of the individual banning order. All banning orders prevent attendance at ‘Regulated Football Matches’, but some go further and prevent attendance at pubs and bars when the Banned fan’s team is playing either home or away, and some bans go so far as to restrict a fan’s liberty so that they cannot even go into their town when their team is playing either home or away.

It sounds like common sense, but a Banned fan should read the wording of their banning order very carefully to see what exactly they are prevented from doing. The Courts do not accept ‘I did not know that my ban prevented me from doing that’ as a reason for breaching a ban, and it is possible that a fan breaching their ban to end up with a prison sentence.

A Banned fan can apply to have their ban lifted after they have served two thirds of the ban. This means going back to court to argue that the fan is no longer at risk of causing future disorder. If the Banned fan has not breached their ban and has not been involved in non-football related disorder, it is often worth asking the court to remove the ban. But sadly, in the meantime, a banned fan may have to become an armchair fan!

Identifying Victims of Human Trafficking – Developing Police Training Materials

Are you a Custody Sergeant or Police 1st Responder?

We need your help to develop our human trafficking training.

Euston, Central London. 14Th August 2013

Migrant Help is a charity working with police forces and other Government agencies around the UK, which supports human trafficking victims.

Following on from the training we carried out last year, it became apparent that there is still a long way to go in training 1st responders, lawyers, civilian police custody staff, and prison staff so that they can effectively identify victims of human trafficking.

Due to the nature of human trafficking, it is not possible to provide exact figures of the number of people who are trafficked in the UK every year, but it is accepted by the Government, law enforcement, prosecuting authorities and charities that trafficking for both sexual exploitation and labour exploitation exists in the UK and is a problem which must be tackled.

We recognise the need to train 1st responders, lawyers, civilian custody staff, and prison staff in recognising human trafficking and have obtained funding to create and deliver training packages tailored to each of these groups, to be rolled out in the Autumn 2013.

 We are currently testing the training materials on representatives of all of the above groups in order to ensure they are as useful as possible. On 14th August 2013 (11:00 to 13:00) we are holding a round table session at Euston in Central London to review the training materials to be presented to police station custody staff, and 1st responders in Police Forces in London and South East of England, including British Transport Police.

If you are a Custody Sergeant, 1st responder (PC, PCSO or Special Constable) and would like to be involved in reviewing the materials, we would love to hear your views. There is no need to have any human trafficking knowledge, as this session will be to assess whether the materials are usable, and also whether our approach to the training is correct.

To register your interest in attending, please contact me at gurdena@btinternet.com

Please note: We do not require you to be an official representative of your police force, as at this stage we are just testing the materials. Reasonable travel expenses incurred in attending the roundtable session will be covered.

Is £52.50 too much to ask of the tax payer to ensure a 16 year old is released from jail and able to sit her GCSEs? Why the Save UK Justice campaign is so important.

Once again I am wading into the legal aid debate.  This blog is not aimed at lawyers, what I have to say in this blog is nothing new to them.  But this will be new to the majority of the public who are being bombarded with misinformation by the Ministry of Justice about the legal aid bill.  This is a longwinded explanation, but please bear with it.  The Ministry of Justice has added a response to the Save UK Justice epetition set up by criminal lawyers.  In that response it is stated that the firms given the contracts for legal aid work will have to show they have competent and capable lawyers.  In my eyes, competent and capable is not enough, those of us who have been doing this work for years do it because we are committed to our clients, and I like to think that all the criminal lawyers I know are way above competent and capable – they are experienced, passionate and dedicated, they understand that with clients, the law is actually only a small part of the service.

Last week I was in the youth court representing a 16 year old youth (X) who had been charged with an offence of violence on the basis of a drive by identity carried out by a shaken and upset teenage victim.   X had been remanded in custody.  I arrived at court, to find X’s very distraught parents, and quite understandably so.  Their child who had never been in trouble before, had been held in the police station overnight – and that in itself was enough to send mum over the edge.  Her child had been locked in a cell all night, on their own, in a large police station in an area where hardened criminals are arrested daily.   Worse still, X was a good student, predicted A and B grades in GCSE exams, one of which was taking place that day!

In the cells I met X.  To use the phrase ‘a rabbit in headlights‘ is an understatement.  Having been held in the police station all night, and then transferred in a prison van to a cell in the court, searched in the police station, and again in the court cells, denied an opportunity to speak to mum and dad, and denied the use of the phone, and then told that the case would be ‘heard when its heard’, by the time I arrived in the cells, just after 9am, so much damage had been done it took me 15 minutes just to calm X down enough to get any sense out of her.  It took another 30 minutes to get all of the information I needed out of her.  Anyone who has teenage children or who regularly deals with teenagers will understand that the task of drawing information from them is not a simple task, made even worse when it is accompanied by sobbing at regular intervals and the need for constant reassurance that X would not have to go to prison.

Having obtained the information I needed from X and carried out more reassurance, and requested that a female custody officer in the cells take X a drink and sit with her for a while just to keep a check on her, I headed back up to see mum and dad.  I had to then start the whole reassurance again with mum who bombarded me with questions – Was X ok?  Had X eaten breakfast?  Had I told X that mum and dad were there for her?  In the meantime, dad paced the floor, getting more and more agitated and frustrated.  I set dad on the task of contacting the school and finding out what could be done about X missing the GCSE exam, and calmed mum by asking her to tell me more about X.

In between this, I had passed word to the court that I was ready to get X into court as soon as possible, and had negotiated with the Prosecutor that this was not a case where X needed to be remanded in custody, and agreed bail conditions.  X’s case was called on by 11.30am and I explained to the court what I had found out about X, how I saw weaknesses in the Prosecution case, not least the fact that the victim did not get a good look at her attacker’s face, but could describe the attacker’s clothing and bag.  What she had actually described was a school uniform and bag which which was worn by at least 500 girls in that area.  In which case it was highly probable that the victim had picked out X on the basis of the uniform and the bag and nothing more.  In addition, X’s future was in jeopardy as she had a place at college to study A Levels but would lose that if she could not sit her GCSE’s, and  I was very concerned about X’s wellbeing even after one night in a cell.

X was released on bail, with the next court date set for a time that did not interfere with the rest of her GCSE exams, and was released from the court in sufficient time to get to school and sit her exam.

As X is a youth, she was entitled to legal aid for my handling of her case.  My legal aid fee for that morning was £52.50 (including my £9 travel).  I do not profess that I am worth more than £52.50, nor do I think I did anything more than any of my criminal legal aid colleagues would have done, but I do think that to be good value and not a waste of tax payer’s money, ensuring that X was able to get to her GCSE exam and preventing a young life being damaged (possibly beyond repair) both educationally and emotionally.

Hence, when the Ministry of Justice makes noises about ‘Fat Cat’ lawyers and the highest legal aid bill in the World, it is interesting to note that they cannot back it up with examples, yet myself and my criminal legal aid colleagues can provide thousands of examples such as these….the real people that the cuts will affect.   Ask yourself, if it was your 16 year old in the cells, would you want them to be given a representative who is merely competent and capable, or alternative  a dedicated, experienced criminal lawyer who cares….

X’s dad sent me a text…’can you send me the link to the petition….can’t put a value on your service…priceless 🙂 ”  So here is the link… if you want to be able to choose your lawyer, and don’t want the expertise to be replaced with a representative from a large corporation who is classed as ‘competent and capable’  please sign this epetition and pass it to others… Save UK Justice epetition

It has been questioned why we are fighting so hard to get to the 100,000 signatures on this epetition.  The Ministry of Justice intends to implement these cuts via secondary legislation, which means it does not have to be voted on in either the House of Commons or House of Lords.  Hence the only way we can get a proper debate in Parliament on these proposed cuts is to get to 100,000 signatures.  Please don’t let the Government bypass democracy and introduce these cuts without a vote.

Finally, in typical lawyer disclaimer style…some of the case details have been changed to further protect the identify of X.

If you have read this far…thank you for taking the time to read my ramblings!

Hold the Gate 2……Firearms, Drive By Shootings and Red Mist can end in a Death Row cell

For anyone who visits Florida Jails and prisons that is a familiar phrase.  It essentially means that the doors and gates inside the jail are locked shut and there is no escape.

“Hold the Gate’…..I enter the pre-trial detention center in Miami just as a troop of defendants, some dressed in their own clothes, most wearing orange trousers and smocks, all shacked together by the hands, cross in front of me on their way to court.  The gate behind me, which is my exit to the outside World is locked shut.

‘Morning Miss’ say some of the troop as they shuffle past, others smile or nod their head.  Due to the number of inmates being taken to court, there is a backlog and the hall begins to fill up with inmates.  The hall echoes even when empty, but with all these inmates and corrections officers in one space, it is deafening.

A guy sits down next to me, a plain clothed cop.  ‘Which floor you going to? I ask him.

“Gladiator” he replies.  The 5th floor is known as the Gladiator floor as it is the roughest floor of inmates.  My defendant I want to see that day is on the 5th floor.

“Damn…are you interviewing or taking someone away?” I ask, ever hopeful that he is not going to queue jump me.  There is only one interview room on the 5th floor and cops usually get priority.

“Picking someone up for the State’s Attorney’s Office”.  My interest is now piqued, if he is taking someone to the SAO, they are probably doing a deal, i.e. ‘snitching’, and I need to make sure it is not my defendant who is being interviewed without a lawyer being present.  To be fair, none of my defendants consider speaking to the cops without a lawyer when they know I am around.  I have threatened all of them that the work I will do on them is ten times worse than anything the cops can throw at them if they speak without a lawyer…they now seem to know the score.

The noise is still deafening, as more inmates shuffle into the room, and then the door to the courthouse is released, the inmates file out and the room is suddenly quiet again, and the gate is opened for more lawyers, and cops to enter.  I sit and chat to the cop about a recent shooting spree in North Miami and he tells me that it is a gang feud, both gangs are trying to assert their authority and take over the patch, and in the meantime innocent people end up the victims of drive past shootings.  I tell him about a woman I met a couple of weeks ago whose daughter was killed while she was asleep in her bedroom, the bullets from a drive past shooting went straight through the outside wall and into her bedroom.  It turned out that the shooters had targeted the wrong house as they had mixed up the house numbers.  He tells me that he now has at least one automatic assault rifle in in the trunk of his vehicle as well as his automatic sidearm, and he is nowhere near as well equipped as the kids carrying out these ‘drive bys’.

The cop asks me what firearm I carry and I tell him that I don’t, and don’t have a permit to carry.  He looks at me in amazement ‘but Ma’am in your job, you must have a firearm’

I tell him that I won’t carry a firearm for many reasons, but one reason is that I know I have an instinct of survival and that if I carry a gun I might just feel tempted to use it.  To which he replies “that is the point!”.  I explain that I wouldn’t be able to live with myself if  I pulled the trigger and killed someone, no matter what the circumstances and he tells me “you English sure are principled”.

The reality is that I can use a firearm and I regularly visit the shooting range as I like to use all the firearms my clients are alleged to have used, so that when they give me the standard phrase ‘the gun just went off’ I can tell them that it doesn’t happen like that, I have tried the firearm and the trigger pull is such that it can’t just go off.  But I will never carry a firearm, as I know that one day I may be in a confrontation and the ‘Red Mist’ may come down, and that is when I would end up like many of my clients…a kill shot in anger can end with a cell on Death Row.

The lift doors opens and an inmate is escorted to the holding cell in the hall.  This is where he will be held until the cop has completed the paperwork to take him to the State Attorney’s Office.  In the meantime, all the inmates who walk past and see him in the holding cell, and the cop in the Hall, shout out ‘Snitches get Stitches”.  For this inmate, if he is returned to the Pre Trial Detention Centre he will not have an easy life.  It is common for the inmates to be transferred to another jail after a visit to the SAO, and often they end up with a stay in solitary confinement for their own protection, to stop them needing ‘stitches’

I scoot over to the lift and push 5 before anyone can challenge me…the Gladiator floor is often placed on lockdown after an inmate is taken out of the pen as the other inmates get worried about whether the inmate is going to snitch on them, so I want to get in to see my client before lock down comes into force.

As I get into the lift, I hear the Cop’s voice behind me…”You want to think about that firearm, Ma’am”.  He points his two fingers at me as the lift doors close and smiles..

Smoke Bombs, Flares and Football Matches = Arrest, Prison and a Football Banning Order

Following on from the recent publicity about the use of flares and smoke bombs at football matches, and a lot of queries to my blog about the police powers in this area I have put together a question and answer section on the subject.

Be warned that even though fans may not think that having a smoke bomb or flare in their pocket is a serious offence, the police and football club take it very serious and even a fan with no previous convictions faces a real risk of going to prison…Spread the word to your friends and other fans…

Is it an offence to let off a flare or firework in a public place?

There are a few exceptions to this, but the simplest answer is YES, it is an offence and usually results in a fixed penalty notice and a fine. If that public place is a football stadium the stakes are raised considerably as it can then result in a 3 month prison sentence.

It is not an offence just to carry a smoke bomb or flare outside the stadium, is it?

YES – just carrying a smoke bomb, flare or firework in the area of the football stadium can be an offence if the police can show that you were attempting to enter the ground with it on you.  I have seen cases where the police have arrested a fan with a flare as they came out of the train station closest to the ground.  The police have argued that as the fan had a ticket for the game, was wearing colors and was with other fans, and was walking in the direction of the ground, that this showed that the fan would have attempted to enter the ground had they not been stopped by the police.  That’s not to say that in some cases, the police interpretation of ‘attempting to enter’ shouldn’t be challenged in court, as there must be legal argument that a fan who is stopped at London Bridge Station about to get on a train to a football gound in South London is not ‘attempting to enter’, but the closer the fan is to the ground, the more likely the police will be able to argue that the fan was ‘attempting to enter’.

I won’t be committing an offence if I have a smoke bomb in my pocket in the ground but don’t let it off, will I?

YES – the law is very clear on this point, you don’t have to let it off, just having it on you in the ground is enough for you to be charged with an offence.

I won’t go to prison if I am found with a flare on me, but I don’t let it off, will I?

YES – you may be sent to prison.  Recent cases have shown that the courts do not take pity on those found in possession of flares, smoke bombs or fireworks. In fact they are giving severe punishments and fans with no previous convictions are being given 3 months in prison, and on appeal the courts are upholding the 3 months prison sentence. The excuses of “I was just carrying it for a mate” or ‘A mate just gave it to me as we left the ground and I didn’t know what it was” are not being given much credit by the courts.  If it is in the fan’s pocket, the fan is guilty and probably will go to prison.

Do the police have the power to stop and search me on the way to the ground to see if I have a smoke bomb, flare of firework on me?

YES – they have powers to stop and search you, and arrest you if they find any of these items on you.

But they can’t arrest me after the game when I am walking away from the ground with the flare in my pocket can they?

YES – if they can show that you were in the ground and that you are likely to have had the flare, smoke bomb or firework in your pocket while in the ground, they can arrest you, and you will probably be charged.

If I am convicted of having a smoke bomb, flare or firework will I also get a Football Banning Order?

YES – the police will probably apply for an Football Banning Order, and due to the nature of the offence, it will be highly likely that the court will consider that the offence was football related.  If the court does decide to issue a football banning order, it will likely be for between 3 and 6 years (in addition to any other sentence such as prison).

The police can’t apply for a Football Banning Order on me unless they charge me, can they?

YES –  if the police can show that they suspect you of having involvement with flares, smoke bombs or fireworks in the ground or outside the ground just before or after the match, they will probably apply for a civil football banning order which can be imposed even if you are not convicted of any offences.

What is a firework?

Even a sparkler falls within the definition of firework, as do bangers and anything else that has a firework logo on it.

What is a smoke bomb?

Anything which emits smoke or visible gas, even something which is home made.

How will the police know that I have the flare or smoke bomb on me?

In addition to the general powers of stop and search, the police will be checking the fan forums and any known fan groups which discuss the use of flares, smoke bombs or fireworks will be targeted by the police, and will likely be stopped and searched.  In addition, the stewards in the ground have the powers to search and if they find a flare, smoke bomb or firework, they will tell the police, and due to the information sharing agreements between police forces and clubs, the police will automatically tell the club if a fan is arrested for possession or use of pyro. I have dealt with cases where football clubs have banned for life the pyro user and their friends, even though there was no evidence that the friends even knew about the pyro before it was used.

In general, if there is one thing that the police and courts are very hot on at the moment it is flares and smoke bombs.  Carry one and you are very likely going to face time in a police cell…and worse…time in a prison cell! Add to this the fact that Clubs are facing fines from the FA and UEFA when pyro is used in their stadium, Clubs are also issuing very long bans for fans found in possession of any pyro.

You have the Right to a Lawyer – So Use It!

I didn’t ask for a lawyer as I have not done anything wrong”

The police said that it would take a while for the duty lawyer to arrive and I just wanted to get the interview over and done with and get out of the police station”

I took the caution as I wanted to get out of the police station”

If I had £1 for every time I have heard these comments from a client, I would be sitting on a beach somewhere hot and sunny now rather than writing this!

The Police and Criminal Evidence Act provides the right to a lawyer, either one that you request or a duty lawyer. The reason for this is not just to advise on the criminal law it is to protect your interests in the police station. Sadly the TV only ever portrays the work of a lawyer in the police station as sitting in on the interview, but in reality your interests are much more than just making sure you are dealt with fairly in interview.

The way police interviews are portrayed on TV, is very similar to what happens in real life. The interviews are all audio recorded and many are video recorded as well, and you can request copies of the tapes from the police. Hence, although I would recommend that anyone who attends an interview has a lawyer present, it can often be more important to have a lawyer representing you outside of the interview room.

The interview is only one aspect of a person’s time in the police station. The length of time spent in the cells, the bail conditions, whether a caution or fixed penalty notice is offered (and whether the offer should be accepted), are all matters that a lawyer can help with. In general, people who have a lawyer spend less time in custody in the cells, have less strict bail conditions, or are more likely to be released and bailed to attend court instead of being held in custody to attend court.

While it is possible to challenge police bail in court, it can take a few days for the court to list the matter and in the meantime the bail conditions may be so strict that a person effectively cannot go outside their front door for risk of breaching their bail conditions. Hence, it is better if a lawyer makes representations to the police at the time. Conditions such as ‘not to enter a town X’ or ‘not to travel on public transport’ are commonly imposed on those who are unrepresented, and are so easily breached especially if a person has to enter the town or use the train or bus to get to work or to visit family.

The person who accepts the police bail conditions just because they want to get out of the police station will often not realise the consequences of such restrictions, and that if they breach the bail conditions, not only can they be arrested, but they can end up in front of the court. On a breach of bail, in certain situations, it is open to the court to decide that the detainee should be remanded in custody…they are sent to prison on remand until the case is dealt with by the court.

This sounds extreme and for most who are given police bail, this never happens, but in general it is more likely to happen to those who did not have a lawyer at the police station, and who didn’t think it could happen to them.

Likewise, the quickest way to get out of the cells is to ask for a lawyer. Once booked into the cells, there is a time limit on the amount of time a person can be held in custody. This is known as ‘the custody clock’. It is worth remembering that the custody clock starts ticking from the time a person enters the custody suite at the police station and not from the time the lawyer arrives, so in general, the police will make the call to the lawyer straight away, and will chase if the lawyer has not arrived within a reasonable period of time. Waiting for a lawyer is highly unlikely to extend the amount of time a person is held in the cells.

Although a caution or fixed penalty notice will seem like ‘no big deal’ when it is being offered, in reality it can be a huge deal. A caution can affect employment, will show up on a Criminal records Bureau check, and can be used against a person in the future. I see many cases where someone has taken a caution or fixed penalty notice merely due to their haste to be released from the cells, they are then arrested for another matter a few years later and this caution or fixed penalty notice is used against them to show their anti-social nature. These cautions and fixed penalty notices show up on a police national computer and can be used in court as evidence of previous criminal history.

Alternatively it may be that an offence has been committed, but that it is quite minor, and the lawyer can make a request for a caution in circumstances where the police would not readily offer one. This means a person avoids being placed under bail conditions and avoids going to court.

For those of you wondering if this is just a promotional post from a lawyer trying to get more work, it is actually the opposite. I am not a police station representative, and the work I undertake in court is often in response to people not having representation in the police station.

But if you are ever unfortunate enough to be arrested, please think of me in my ‘you have the right to a lawyer…so use it‘ T-shirt!