Law Weblog

Direct access to barristers now uncertain

On Friday 2nd December 2005 the Court of Appeal handed down its ruling in the battle between HM Revenue & Customs (HMRC) and the tennis star André Agassi.

Tenon Media – Agassi’s accountant – did not provide “legal services” and so could not win on the issue of costs. Some of the costs inccured by Tenon were incurred when they instructed a barrister directly and did not use a solicitor, hoping to keep costs down.

Tenon’s total costs bill for was less than £20,000. The appeal judges heard that solicitors, who might have far less expertise in the tax field, could well have charged three times as much.

Agassi brought his case using the Licensed Access Scheme (LAS) designed to provide more cost-effective legal cover for small and individual litigants. A Bar Council spokesman said: ‘It is estimated that the effect of the judgment is that the client in this case will be able to recover up to about 41% of the costs of the tax professional, and 71% of his total bill when using the licensed access scheme.’

From 1 December police have been allowed to test for drugs on arrest

The scheme has been initially targeted in areas with the highest drug-linked crime rates such as Greater Manchester, South Yorkshire and Nottinghamshire.
The powers are likely to be expanded into other areas from 31 March 2006.

Key points of the powers:

• offenders will be tested for heroin, crack and cocaine on arrest for acquisitive crimes, such as robbery, burglary
• offenders who refuse the test could face a penalty fine of up to £2500 and/or three months in prison
• courts will be able to deny bail unless the offender agrees to a drug assessment
•  anyone who tests positive will be assessed by drugs workers and allocated a programme of support or treatment

Consent – mistake – special provisions

R v Dougal (2005) Swansea Crown Court
[General defences – consent – statutory provision – reverse burden of proof]
D had sexual intercourse with V whilst she was too drunk to give or deny consent.

Held: Section 74 of the Sexual Offences Act 2003 put the burden on the defendant to show that consent had not been refused in circumstances in which it would be deemed that the victim had not the “freedom and capacity” to consent.

Not guilty
Comment: Under the 2003 Act once the prosecution has proved that sexual activity took place in one of the precluded circumstances (e.g. victim detained, asleep or drugged) it would be for the defendant, on the balance of probabilities, to persuade a jury that consent had been given (a reverse burden of proof).

Prosecuting counsel’s statement in Swansea Crown Court that “drunken consent is still consent” demonstrates that the legislation has not settled the issue of consent laid out in the White Paper because the prosecution was not able to prove that sexual intercourse had taken place because the woman could not remember.

This case occurred in the same week as an Amnesty International survey claims that the true extent of rape exceeds of 50,000 a year, compared with 12,000 reported rapes. The survey also showed that many people believe the victim’s behaviour can make partly to blame.

It is submitted that both the judge and the prosecutor correctly interpreted the current law.

Britain’s most wanted

Yousef Ahmed WAHID, Britain’s most wanted man?
See Crimestoppers new website, here

New QC system fails before it starts

The new transparent scheme for selecting QCs was meant to attract more minority ethnic lawyers. It appears to have failed before it has started. Only 21 have applied to become QCs a smaller proportion (5%) than under the old system.

It is thought that the fee of £1,800 paid on application has deterred black and Asian lawyers, who are known to earn less than other lawyers. The £1,800 is not refundable and as only one in four gets selected there is a considerable risk. 97% of the applicants were barristers.

Details here

Sentencing – principles – deterrent

R v Maka (2005) CA
D had been involved in the trafficking of a 15-year-old Lithuanian girl who had been tricked into coming to the United Kingdom.  She was subsequently sold by the defendant a number of times, leading her to being raped and forced to work in brothels as a prostitute.

Held: The total sentence of 18 years on conviction for trafficking was severe but it was appropriately severe. Human trafficking had echoes of slavery. Deterrence to others who took part in such activities was a highly material consideration and the deterrence applied to others in Lithuania or other parts of Europe. The judge at trial stated that 120,000 women were being sent from the East to the West annually, and that the rate was increasing by up to 10% per year. He said that Lithuanians were particularly vulnerable since the country had entered the European Union, as Lithuanian criminals were targeting the United Kingdom. Trafficking is contrary to the Sexual Offences Act 2003. Attorney General’s Reference (No 6 of 2004) [2004] considered.
Appeal dismissed

DPP refers Julie Hogg case to Court of Appeal for the first time under double jeopardy law

For the first time the Director of Public Prosecutions, Ken Macdonald, QC, has given his consent for a case to be referred to the Court of Appeal under the double jeopardy law. Now it is up to the Court of Appeal to decide whether William Dunlop should be tried again for the murder of Julie Hogg.

The reform of the double jeopardy rule – that a person once acquitted cannot be tried twice for the same offence – came into force on 4th April 2005 under the Criminal Justice Act 2003. The provisions only apply to the retrial of serious offences and follow a recommendation of the Stephen Lawrence Enquiry.  
Under the Act, the Court of Appeal has the power to quash an acquittal and order a re-trial where there is new and compelling evidence relevant to the guilt of the acquitted person and it is in the interests of justice to do so.

William Dunlop faced two trials for the murder of Julie Hogg who was killed in 1989 in Billingham, Cleveland.
Each time the jury failed to reach a verdict and he was formally acquitted in 1991.

R v Lang and other appeals (CA)

R v Lang and other appeals (CA) was a hearing about 13 cases on sentencing under the Criminal Justice Act 2003. The court made the following statement per curiam:

“The fact that the sentencers in the instant cases had been unsuccessful in finding their way through the provisions of the labrynthine Criminal Justice Act 2003 was a criticism not of them but of those who produced these astonishingly complex provisions. Whether or not in time the public will benefit from provisions of such complexity is not clear, but there is much to be said for a sentencing system which is intelligible to the public as well as decipherable by the judiciary.”

Public Nuisance – probably not a crime of strict liability in all cases

R v Rimmington and R v Goldstein [2005] HL
In Goldstein the defendant put salt (as a joke to his friend) into an envelope, salt leaked and the sorting office was evacuated as it was feared it might be anthrax poison.

Mr Goldstein did not foresee the leakage (nor desire it; there would have been no joke) and so had no mens rea and was not guilty.

Barristers’ “strike” called off

Following meetings with Lord Carter of Coles, who is leading the review of barristers’ pay, barristers have agreed to return to normal working and await the review’s outcome.