Radical lawyers, law centres and an uncertain future

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Many solicitors firms and chambers influential in criminal defence in the last few decades were founded by lawyers who cut their teeth in the Law Centre movement, writes Oliver Lewis.

Read the rest of this article on The Justice Gap here.

My novel, The Riproar

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Criminal Defence Matters: 2. Julia Dick on Women and the Law on Provocation

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An occasional series in which criminal defence lawyers talk about a case which shows why criminal defence matters.

Julia Dick was a criminal defence barrister for many years. Together with Vera Baird QC, she represented several women appealing convictions for murder after killing their violent partners. In 1999 they successfully represented Diana Butler at her appeal after she had been convicted of murdering her partner.

Diana was in an abusive relationship with her partner, Roger. For several years he had been violent and sexually abusive to her. One evening they had an argument. Roger hit Diana and dragged her around the house. She was frightened for her safety but he did not stop. She picked up a knife and stabbed him.

In December 1998 Diana was convicted of murder and sentenced to life imprisonment. Diana’s case was taken up by the organisation Justice for Women which was campaigning over the failure of the law to deal effectively with men’s violence against women and in particular on behalf of battered women who kill.

At that time, provocation as it was then defined was male biased.  It was a defence of killing in anger and it didn’t help women who killed out of fear and the accumulated despair of repeated provocation.  On the contrary, with its incorporation of the need for a “sudden and temporary loss of self-control” it was successfully used by men who had killed their female partners because e.g. “she was having an affair” or “the baby wouldn’t stop crying”.

Women were stuck in a male centred legal system which didn’t always fit the facts of alleged criminality in the context of an abusive relationship.  The law of provocation had been designed almost to deal with the old-fashioned honour killings between men to allow men whose dignity had been wounded to be exonerated.

There had been several important cases prior to Diana’s.  Sara Thornton, Kiranjit Ahluwalia and Emma Humphreys, had all successfully appealed against their convictions for murder with the help of Justice for Women. Each of these cases had extended the definition of what constituted provocation to allow the court to take into account the cumulative effect of years of abuse.  But they also demonstrated that the law had to change.

Vera and I were asked whether there was any basis for an appeal in Diana’s case. We took the view that her trial had been flawed and launched an appeal.  Much of the history of abuse had not been put before the jury and other grossly prejudicial and irrelevant material had been allowed in.

Diana’s appeal was successful. She had a re-trial in July 1999. After she had given evidence at the trial, the prosecution agreed to accept a plea of guilty to manslaughter. She was sentenced to three years’ probation.

It was our experience in working to overturn the convictions of women like Diana that they had often been ill served at their original trials   In many such cases, these defendants had no experience of the criminal justice system, and during their trials there had been an insufficient understanding of domestic violence.  This meant, for example, that often not enough time and trouble was taken to investigate the background and context to present the jury with the full picture.

We found gender bias in the field of self-defence too.  There was often a lack of recognition of self-defence scenarios. Women defendants often did not present themselves as classic “self-defence” defendants and lacked confidence that they did what was necessary to prevent themselves from serious harm. Rather they were more likely to be remorseful and depressed.  They often used a weapon against an unarmed but much physically stronger and more powerful man more experienced in using violence.

Justice for Women did a brilliant job in raising awareness about the injustice of these kinds of convictions.  They held demonstrations and petitions and kept the issue at the forefront of the public imagination. At the same time, superb and courageous lawyers including Vera Baird QC and the late Helen Grindrod QC led the legal way.

Finally, in 2009 the old definition of provocation was abolished and was replaced with a partial defence to murder of “loss of self control”.  The “loss of control” no longer has to be sudden.  It has to have a qualifying trigger which could be a fear of serious violence. The new law specifically excludes the defendant who acts out of revenge so no longer can a husband who discovers his wife’s infidelity avail himself of this defence.  On the other hand, it enables a person who kills in response to a fear of serious violence to put forward her defence rather than trying to fit it in a defence based on killings in anger.

Over the same period, society’s attitudes to violence against women have evolved due in part to the tireless efforts of campaigns like Justice for Women and others such as Standing Together Against Domestic Violence which over the last decade has pioneered a multi-agency approach to tackling domestic abuse.

There are now 144 specialist domestic violence courts specifically set up to prosecute perpetrators across England and Wales. The police and the CPS are now trained to understand that domestic violence follows “a pattern of coercive control” and is made up of a combination of sexual, psychological and physical abuse. There is a much greater emphasis on victim safety.  Hopefully too, in cases of alleged murder in a domestic setting, the courts are now much more willing to avail themselves of the body of expert evidence that has developed about the complexities of intimate relationships dominated by violence.

Of course the problems that women face in the criminal justice system, whether as defendants or complainants, are by no means behind us but the gender biased old provocation laws certainly are.

Michael Turner QC: Do Right, Fear No one

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Those of you who choose to join this profession whether it be as a barrister or solicitor will do so for one reason and one reason alone and that is because you have the passion to do right and fear no one.

 

Read the speech given by Michael Turner QC, Chairman of the Criminal Bar Association, to aspiring pupils here.

Profile of Hillsborough Lawyer James Saunders

James Saunders is one of the lawyers representing the Hillsborough Family Support Group. In January, he was named in The Lawyer’s Hot 100 2013.  He spoke to Oliver Lewis.

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James Saunders is a man who likes a challenge. Having conquered Kilimanjaro last year, he is now facing the momentous task of representing families of the Hillsborough disaster victims in their long fight to get justice after perhaps one of the biggest cover-ups in British legal history.

Sitting in his office near the Royal Courts of Justice, he says the case came to him somewhat unexpectedly.When the Hillsborough independent panel was constituted, the Hillsborough Family Support Group  (HFSG), the larger of the groups of those affected by the disaster, wanted lawyers in place and they approached Michael Mansfield QC. “Michael and I go a long way back. Of course, we didn’t know what the report was going to say; but we met the families and looked at the evidence and said we would act if we could do anything useful. And then the Prime Minister stood up in Parliament and said he thought it was an outrage, so, with an invitation like that, how could we resist?”

Things moved quickly after the publication of the report and he soon found himself in meetings with some surprising figures. “It is certainly unusual for me to be meeting with people like the Home Secretary and the Director of Public Prosecutions, but the establishment has decided it wants to help and ensure that justice is now done. It’s a case where politics and law have intertwined.”

Legal career a surprise

In fact, James Saunders has often been at the point where politics and law meet – but he had not planned to be a lawyer. He did sciences at A Level and hated it.

“Back then there was only one subject you could study if you wanted to switch, so for that rather negative reason I moved over to law and found I loved it.” And studying law in the late 1960s was a formative experience. “The events of 1968 were rather sexily cradled in the middle of my studies. It was the era of student politics; and we erroneously thought we might take over the world.”

He decided to start a law centre and soon met up with Peter Kandler who, with Lord Gifford and others, was already along that path. “I joined them and together we started the North Kensington Law Centre in 1970 – it was a great adventure.”

The landscape for criminal defence lawyers was very different then and solicitors did not normally go to police stations. “If solicitors were so unwise to break that rule they were politely told by the police that it would not be in the interests of justice for them to see their client before charge!” he recalls. “If complaint was made of this at a subsequent trial, the judge would say ‘Quite right too, officer!’ As I had always liked climbing mountains this seemed like a good one to have a go at, and so that’s how I became a criminal lawyer.”

Life on Mars

Qualifying in 1972, he set up his own firm two years later, and was subsequently at the forefront of the changes which took place in the 1970s and 1980s.

“The next generation of lawyers think there have always been solicitors in police stations and are unaware of a frequent feature of trials then: disputes over ‘verballing’, where trials turned on what words were supposed to have been used by suspects.”

He dealt with many cases where people were beaten up by police and says the abuse meted out then is unimaginable to most today. “Police took the view they were the judge, jury and executioner too, and beatings were handed out as a sort of extra-judicial punishment. The beatings weren’t really to force people to make confessions, because police were perfectly happy to make up the confessions anyway. I did a case where it took three visits to the Court of Appeal to prove that my clients, who had been in prison for more than 20 years, were wholly innocent because of this type of verballing.”

He and Michael Mansfield did a long series of cases together involving the Robbery Squad. “I think we had the record for the most consecutive acquittals at the Old Bailey,” he says. He feels those cases had some part in the introduction of the Police and Criminal Evidence Act (PACE) in 1984. Over the years, the tide of opinion had turned against police. “Eventually, Margaret Thatcher woke up to the fact that the conviction rate was going through the floor and they brought in PACE. There was a growing enlightenment, and, as false convictions have been illuminated, people have been able to see that, if you take shortcuts, then you won’t necessarily convict the right people.”

Police mindset

And he sees a connection between the attitudes and behaviour of police in that era and what later happened at Hillsborough. “In that context, Hillsborough is an interesting case for a number of reasons,” he says. “Hillsborough was in 1989, so it was not so long after PACE, and the attitudes reflected in the behaviour of the police were very typical of the time – the police ran the show and they decided who was guilty. There was an arrogance which stretches the imagination of politicians today. When Cameron stood up and spoke about what had happened at Hillsborough, I think he was genuinely in shock.”

Born and bred in Sheffield, and tribally a supporter of Sheffield Wednesday, Saunders also sees a link with the infamous Orgreave riot case after the miners’ strike in 1984. “I think Orgreave is going to be carefully looked at again in the context of Hillsborough because that also involved the South Yorkshire police and many of the individuals are common to both cases,” he says. “There is a thread of arrogance and impunity which is common to both cases and is very striking.”

Hillsborough families

The criminal aspect of the Hillsborough case is now in the hands of the DPP and he thinks that is right. “It’s my view that as long as the state does its job, it is the correct and competent body to bring prosecutions, rather than for the family to bring private prosecutions.” But could civil proceedings still follow?

“Experience tells us that disclosure and the procedures in civil litigation can be more effective in shining a light on the truth than criminal law, so I am also considering that.”

He is full of praise for the families in the case. “The Hillsborough families are very interesting and impressive. They are united by having endured what Cameron called a ‘double injustice’, typically having lost a child or children and then to have them denigrated for causing their own death; but what is really striking about them is the lack of bitterness. I’m sure I would be really very bitter indeed if all of that had happened to me, but for them it’s almost like forgiveness. Yes, they want accountability and justice, but they want it without rancour. They just want it because it’s the truth and it’s what should happen.”

Changing landscape

Having held a practising certificate for over 40 years, James Saunders could be forgiven for wanting to spend more time in his large garden at home; but he says that his workload is more wide-ranging and interesting than ever. “Once, I did only criminal trials and the odd appeals. When I started, the heavy crime was robbery, old fashioned ‘blagging’, although no-one does that now because a large amount of cash is no bloody use to anybody! Now professional criminals are into fraud and money laundering. We criminal solicitors follow where the action is!”

He is unmoved too about the recent appetite for never-ending legislation. “It wasn’t quite the Ten Commandments when I set out, but the relevant law could be carried around in a book under your arm. Now there isn’t a lorry big enough to carry all the authorities,” he observes drily. “As you get older, you look out for new challenges, and I now have a wonderfully mixed diet of cases. I do a mixture of media law, civil litigation and professional regulation. I am dealing with a thought-provoking multiple murder case at the Old Bailey which is ultimately about how we treat people with mental health problems; and coming up this summer is a Privy Council appeal of a lawyer accused of money laundering. I am also doing some cases associated with Leveson, but in the centre of it all right now is Hillsborough.”

The novel experience of sitting down with establishment figures like the Home Secretary has, however, not softened his scepticism about politicians’ views on defence lawyers. He thinks the political classes are more determined than ever to strangle the criminal defence profession.

“An obvious way they set out to achieve that is by reducing legal aid and creating bonkers schemes like QASA, and it’s obviously a worry,” he says. “All politicians are working class heroes in opposition and support legal aid and oppose control orders and so on, but when they come into power they are subverted by the demands of office and government. There are individual exceptions, but corporately they change spots and become oppressors. Politicians come and go, but all of them deep down dislike and resent criminal lawyers for making their lives more difficult. Of course politicians don’t actively want injustice, but they want things that result in injustice. Criminal lawyers stand in the way of that.”

Looking ahead

Even so, he remains optimistic about the future. “It is perversely wonderful that there are more youngsters wanting to become criminal lawyers than there is room for – and they broadly do a job vastly better than the one that is being paid for.”

His firm runs a training programme and students also come to the firm for a year as part of their degree course. He detects in the young lawyers coming through today the same determination of his own ‘68 student generation, even as ever-greater challenges for criminal lawyers loom into view. “I think the government policy is to push things until there is a tipping point, perhaps towards a small number of large legal aid factories; but they will be disappointed if that’s their business plan, because, although they may yet get some of those factories, and there may be some already in existence, there remains a freedom of spirit; and I have every confidence the next generation won’t stand for it.”

James Saunders gives the impression that, like that next generation, he is relishing the prospect of tackling many more mountainous challenges in the years to come.

This article appeared in the March issue of the London Criminal Courts Solicitors Association magazine, The London Advocate.