Following the announcement last week that the Ministry of Justice intends to expand the Public Defender Service in England and Wales, I have decided to wade into the debate.

Firstly, there is a reason it has taken me a week to get around to typing up this blog. For the past week I have been working on case preparation for the Miami Office of the Public Defender, an office which I work with on a voluntary basis and which is so snowed with cases that its elected Public Defender Carlos Martinez had to take the unprecedented step of petitioning the Florida Supreme Court to ask permission to refuse to accept some felony cases due to an excessive workload. The Florida Supreme Court said in its judgment

‘Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered….instead the office engages in triage with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients”.

I am one of those who offers a limited amount of triage on a pro bono basis, but it is not enough…

Miami is not alone in its public defender work overload, I have worked with public defenders around the USA and all are suffering the same. Some Public Defender offices no longer have an elected Public defender in charge, as they have resigned in protest at the conditions their staff and defendants are working under. I have seen public defenders in court with a case load of over 40 cases in one day, as the defendant’s name is called the public defender searches for the file, and opens it up for the first time as their defendant is being asked about plea or is being sentenced. In this situation the public defender is not a lawyer, they are merely reciting the information in the file, which is often nothing more than one page of basic information on the client. I have seen public defenders read out the facts of a clients file only for the defendant to say in open court “that’s not me’. As the public defender had not met or even seen the client prior to them being brought into court the public defender was unable to even vouch for whether the person in court was their client!

Transfer this to Mr Grayling’s planned expanded Public Defender Service in England and Wales. The Crown Prosecution Service, which will always be able to justify the need for more funding than a defender service, is in melt down. The number of prosecutors has been cut to levels where the CPS can no longer service the courts. In recent weeks there have been one damning judgment after another from senior judges who are witnessing first hand the damage that the funding cuts have caused to the CPS – disclosure not being provided to the defence because the CPS cannot afford to provide it, cases having to be rescheduled as no prosecutors are available, failure of cases being reviewed by the CPS prior to being brought to trial, or worse still case papers being lost by the CPS. While the Ministry of Justice and the CPS profess to have the interests of victims at the heart of their work, these cuts have shown that victims are no better protected than they were 5 years ago. The recently departed Director of Public Prosecutions, has effective stated that the CPS is not fit for service.

The experience of the Miami Public Defender’s office is a taste of things to come in England and Wales if the Lord  Chancellor gets his way and introduces an expansion of the Public Defender Service, and all of the problems of the CPS will be multiplied in the Public Defender Service as it will be working under a lesser budget than the CPS. That will not only affect the defendant but also victims who will be caught in the crossfire.

Sadly, the Ministry of Justice has not yet realised that criminal defendants are people and are not just a number.

The youth who has been held in custody for a night, and who has decided to plead guilty to an assault that they did not commit just so that they can get back to school to take their GCSE’s, who needs to be advised that a quick plea to assault now could have dire consequences for their future, requires more than a quick conversation in the court room when they are brought up from the cells.

The ex-soldier with PTSD who regularly suffers flashbacks to his colleagues being blown up by a roadside bomb, who has not managed a full nights sleep in the past 18 months, who cannot sleep in the same room as his wife due to his fear he will beat her in the night during one of his nightmares, requires more than a quick five minute chat about his mitigation prior to going into court for sentencing.

The woman who was caught shoplifting food for her and her children due to her benefits being cut completely when she signed a zero hours contract with a local company, and which despite promises of full time work has not provided her with more than 2 hours work a week, requires more than a letter telling them to turn up at court with evidence of her benefit withdrawal.

These are not unusual scenarios for any criminal defence lawyer. We deal with cases like this every day, we spend a great deal of time with the clients, we try to get to the crux of the matter with them, and we spend many hours, evenings and weekends preparing for their cases. However, we are independent, we chose to do this work and put the hours in, and we do it because it is right. An employee of the Public Defender Service will be subject to targets and decisions by their superiors as to where their work efforts should be focused, and this in turn will be decided by the Government or media interests.

Through funding cuts, this Government has effectively taken away the right of the people to challenge State action by the removal of legal aid for judicial review of actions of the State. With your support we managed to persuade the Lord Chancellor to back down on his proposals to limit the right of a defendant to choose their own defence lawyer.  However, this recent announcement of the Public Defender Service is effectively the Lord Chancellor removing the right to choose a defence lawyer by another method.  Does he think the public are stupid enough not to realise this  expansion  for what it is, a kick in the teeth for all those who tirelessly campaigned to protect the right of the defendant.

The expansion of the Public Defender Service can only mean one thing, that criminal legal aid for the independent defence lawyer will be abolished. This is not to reduce costs to the tax payer as the Public Defender Service has been shown to be more expensive than the current criminal legal aid system, but to ensure that only those cases that the Government believes are worthy of being defended will be defended. For all those who don’t fall into that category… they will be left at the mercy of the public defender who picks up the file with their name on it for the first time as the defendant walks into court..

Us defence lawyers need your help. I know its a tough call as defence lawyers are not the public’s favorite profession, but you never know when you or one of your friends or family may need us. Every day I hear the wording ‘I can’t believe this is happening to me” from clients who have never been in court before. Please don’t wait until its too late…

What can you do to help?

• Sign this epetition (you will be in good company as Joanna Lumley has created the foreword for the petition) www.change.org/en-GB/petitions/david-cameron-uk-government-save-legal-aid-to-protect-access-to-justice-for-all
• make people aware of the damage that this Government intends to do to a persons right to defend themselves against criminal charges;
• write to your MP, the Lord Chancellor Chris Grayling, The Prime Minister, complaining about the reduction in legal aid and the expansion of the Public Defender Service;

 I defend people facing the death penalty in the USA and elsewhere in the World and I work with people who are on Death Row in Florida. I don’t believe in the death penalty, but I respect the opinions of those who do.

This may seem to be a strange statement coming from someone who gives up time to work voluntarily on death penalty cases. However, as I spend around 6 months of the year working with people who are facing the death penalty I feel I am probably a lot more qualified to make such statements with regard to the death penalty in the USA than many abolitionists who oppose the principle but have never seen it in practice and have never had the opportunity to get to know those who are facing the death penalty.

I grew up in Europe. By the time I was born, the death penalty had been abolished in the UK and the European Union was coming close to taking an abolitionist stance. Hence, I grew up being told that to take a life was wrong, no matter under what circumstances that life was taken. In Countries where the death penalty is still in operation, the citizens have never grown up being educated that the death penalty is wrong. For them it is a fact of life, if you commit the most heinous of crimes you will be punished and that punishment may include death. Who am I to say that it is wrong for the citizens of Delaware (a State which I have never even visited) to recommend death in a murder case?  I receive a lot of communications from people who tell me that the Death Penalty is wrong and i should be doing more to campaign against it.

What I do believe very strongly is that everyone who is facing the death penalty should have the right to the best defence possible. This defence should include mitigation experts and lawyers, and they should work very hard to make sure that their client has the best possible chance of persuading the State or the Jury and the Judge, that the person in front of them should not be ordered to face the death penalty. This is about educating the State, Judge and Jury about the persons life, and perhaps find some answers which can explain why, if they have been found guilty, they did what they did. It is not finding excuses, it is not asking for sympathy for a poor upbringing or a bad lifestyle, but it is providing an explanation. I have worked on many cases where providing that explanation has been sufficient for the State to waive the death penalty (change the status of the case to a non-death case). This does not mean that the client is no longer facing a murder charge, but that they go to trial knowing that they face life, if convicted, not death. Merely telling people that the death penalty is wrong, will not persuade them that the death penalty should not be imposed, if they don’t agree with the death penalty they will not impose it anyway, and if they do agree with it, being preached at by an abolitionist is not going to change their view.

In the USA, many State Attorneys use the threat of the death penalty as a bargaining chip to force a client to plead guilty to murder on the basis that they will not face the death penalty when sentenced. This I believe to be wrong, it is a political game which is playing with people’s lives and is unfair. A person should have the right to make their own decision on whether they should plead guilty or not guilty, and the decision should not be enforced on them by pressure to keep high conviction rates for murder.

In my view education is the key. That is not to say that by educating a person they will automatically become a death penalty abolitionist or opposed to the death penalty, but it will allow them to make an informed decision. Looking at the pure economics of the death penalty, it is much more expensive to prosecute and defend a case where the potential punishment is death, than any other case. This is due to the amount of preparation work, including the mitigation, the fact that the jury selection will take longer, and most importantly the fact that there are many appeal processes that a person sentenced to death can activate. In addition, Death Row is a very expensive section of a prison, it requires more guards per 10 inmates than any other high security section, and each Death Row prisoner is placed in solitary confinement, so again there is the added cost of one prisoner to one cell.

In addition to the economics, there is the risk that there could have been a wrongful conviction. To say that murder convictions are never wrong, that the jury gets it right every time is a nonsense. Everyone makes mistakes in life, and the jury are being guided by police, prosecutors, forensic experts, defence lawyers, and judges, there is huge scope for a mistake to have been made by one of those parties and for that mistake to shape the jury’s decision. Once a person has been placed on Death Row and in solitary confinement, aware that at any stage they could be executed, the damage is done, both mentally and physically. Very few inmates are able to pull back from that and lead normal lives if they are later identified as being wrongfully convicted. But at least they may still have some semblance of life, whereas a mistake discovered after an execution can never be rectified.

Finally, in my experience many of the people I work with who are facing the death penalty are not necessarily what I would class as bad people. They may be innocent or guilty of the crime, and if guilty they should be punished for their crime, but for many the reason for the crime was circumstances outside of their control, or due to them not thinking about their actions. Mr X whose mother had him running drugs from the age of 10 to pay for her fix. The only kindness he received was from the drug dealer who, in return for him running drugs gave him a warm place to stay, pizza, and new sneakers and a coat. He grew up looking at this drug dealer as a father figure, and so when the dealer was gunned down in the street, X went to find the person who did this, and executed him. Don’t get me wrong, I don’t agree with either killing, but is this so far removed from the father who goes after the man who killed his daughter in a drink drive hit and run? In my experience the death penalty would never be mooted for the father of the drink drive victim.

Only through education can those who still have the power to impose the death penalty – the citizens of a state who vote on the Governor’s death penalty policy, the prosecutor who decides whether a case should be eligible for the death penalty, the defence lawyer who has to see the case not only from the client’s point of view but from the point of view of the victim’s family and friends and must be able to empathise with them, and also the jury who recommend life or death on a convicted defendant, and the judges who make the decision on the death penalty during sentencing and also those who hear the appeals of a person on death row – make an informed decision on whether the death penalty should remain in force. It is hoped in years to come that more States will abolish the death penalty, but until they do, preaching to them that they are wrong is not the answer, working with them is…

If you want to find out more about people who have been wrongfully convicted and placed on death row in the USA, watch these http://www.oneforten.com/films video short interviews.

On Sunday afternoon my Twitter feed suddenly erupted with threats and abusive comments against Gabriel Agbonlahor. His crime, it seems, was to tackle One Direction’s Louis Tomlinson during the Petrov charity football match.

These tweets come less than a month after the Crown Prosecution Service announcement that threats and abusive comments made by football fans on social media would be punished. The CPS press release went to far as to suggest that anyone making such tweets faced prosecution and a football banning order preventing them from attending UK matches and also the 2014 World Cup and the 2016 Euros. The CPS press release and comment form Nick Hawkins stressed the seriousness of such tweets, this incited a social media outpouring of complaints from fans that they had been placed under a gagging order to prevent them from talking about players and their team.

Compare this with the media coverage of the Gabby Agbonlahor death threat tweets which were greeted by the media with humor and comments about obsessive teenage girls. One such tweet was quoted in the Daily Mirror “this guy that hurt Louis knee, I shall hurt your face. I better hear that you apologised or I will find you and I will kill you”. While on the face of it this tweet can be seen as an overexcited utterance by a teenage One Direction fan, I question whether it would have been treated with the same humor if it had been a tweet by a male teenage fan of a Premiership club, who was frustrated at the actions of a player, or the referee who made what he considered to be a poor penalty decision.

I do not for one minute suggest that these teenage tweets about Gabby Agbonlahor’s actions should be the subject of prosecution, far from it. However, I do believe it highlights the way football fans are treated in relation to other members of the public. The fact the CPS has produced a policy on prosecuting football related offences and included social media in this is one such example. In the past couple of years there have been prosecutions under the malicious communications legislation for tweets and Facebook comments relating to Olympic athletes, the riots of 2011, the murder of two police officers in Manchester, and other such events, but the CPS has chosen football as the subject to promote its policy. This is despite the fact there have been very few cases of fans threatening others on social media. Fans in general seem to receive more abuse than they give out, but the spin always seems to be towards criminalising and casting fans in a negative light.

I am often asked why I specialise in football supporter law as it doesn’t fit with my other specialisms. The answer is that in many cases I see fans as the underdog, when I explain to people that I represent football fans the usual reply is “oh, what football hooligans?”.  My reply to this is usually “No, men, women, teenagers, students, doctors, police officers, architects, chefs, builders and baristas – all of whom are also football fans!”.

So what is the significance of the CPS policy on prosecuting football offences and its accompanying press release?

Above all else it seems to indicate what is common in the courts – that the CPS does not understand the legislation and just assumes that a football banning order will be ordered by the courts in any situation where it is requested by the CPS. The policy states “ anyone receiving a FBO this season will be prevented from travelling to both the World Cup 2014 in Brazil and Euros 2016 in France…” It is the use of the word ‘will’ that offends me as it does not have regard for Section 14E of the Football Spectators Act 1989. This section provides that in exceptional circumstances the court does not have to impose the international travel restriction. While I accept that the use of the words ‘exceptional circumstances‘ means that in most cases the travel restrictions will be imposed, it does not mean in all cases as the CPS implies. For example, if a fan has a strong track record of attending international games along with young or disabled persons who cannot travel on their own, and without any previous disorder, it is likely that they could show exceptional circumstances.

Nick Hawkins’ the CPS lead on football offences’ comments in the press release indicate that abuse of players or fellow supporters via social media will also result in a football banning order. However, offences under the malicious communications legislation are not included in the Football Spectators Act as offences which bring a Football Banning Order into play. And the CPS malicious communications policy states that public order legislation (which does bring a Football banning Order into play) should not be used for threats and abuse made on social media.

Hence it appears that despite the hardline taken by the CPS, a Football Banning order should not be imposed on a person sending abusive tweets or writing abusive status updates on Facebook. Nor should it be a done deal that a fan receiving a Football Banning Order will be banned form traveling during international games and tournaments. That is not to say that fans should not take notice of the policy and press release, as it is highly likely that the CPS will do its utmost to prosecute anything classed as football related. And in my experience the courts have even less understanding of football related offences and Football Banning Orders, hence a fan cannot expect to attend court and not be given a Football Banning Order just because they say it is unfair. However, fans should be aware that a Football Banning Order is not always a done deal and in many cases should be challenged.

And as for Louis Tomlinson…today’s tweets imply that his knee is healing nicely….Phew!