Monthly Archives: March 2014

A view from…an undercover cop – Part I

Popular misconceptions

ACPO’s (Association of Chief Police Officers) head of crime, Merseyside Chief Constable Jon Murphy, has said that undercover Officers play a critical role gathering evidence and intelligence to protect communities from harm. He also described undercover work as being one of the most challenging areas of operational policing. The question is what is it like to be an undercover Officer?

When it comes to undercover work there are a lot of misconceptions and confusion, much of which is the result of films and TV shows.

First and foremost is the belief that any Police Officer wearing plain clothes and who is not wearing a suit is working undercover. Police Officers working in specialist investigatory roles tend to wear more casual clothes such as jeans and t-shirts. There are a variety of reasons for this. One of the main ones is that they may be called to carry out surveillance or observations on a person or property at short notice and it is not practical for them to repeatedly change in and out of uniform.

Officers working undercover wear clothes to suit the role they are portraying. An Officer posing as a heroin user would stand out a mile if they were wearing a suit. Similarly, an Officer attempting to buy ten stolen iPads would not get very far dressed in a dirty old tracksuit that had not seen the inside of a washing machine for some time.

The next popular misconception is that any Officer can work undercover at the drop of a hat and work right next door to the Police Station where they are based. The first stage in becoming an undercover Officer is the assessment. The assessment comprises a number of interviews and role playing exercises to see how the Officer reacts to various circumstances. Everyone who is successful at the assessment progresses onto the initial training course.

The training course

For obvious reasons, the details of undercover courses are shrouded in secrecy. They are run by serving and ex-undercover Officers to an agreed national standard and are widely acknowledged as being the most difficult course any Police Officer can undergo.

The candidates on the course are put through a series of increasingly challenging situations. To ensure accuracy, the basis of each situation is a repetition of one that has happened in real life. Although this has the benefit of allowing the assessors to see how the candidates handle real life situations, the Officers running the course allow each situation to unfold naturally and react to the candidate’s actions.

Unfortunately for the candidates, the courses are run under “big boy’s rules” which means that there are no “safe words” to stop the exercise and on occasions, candidates have been known to suffer injuries after being assaulted or injured during the exercise. The people running the course act just like a criminal would in real life and if that includes resorting to physical violence then so be it. If the candidate cannot handle it in a training situation they will not be able to handle it in the real world.

In amongst the practical exercises, there are lengthy lessons on the legal aspects of being an undercover Officer. Although they work undercover, the Officers are still subject to the exact same laws as when they are working in uniform although undercover Officers have additional laws to work with such as acting as an agent provocateur which is something that regular officers do not have to even think about.

Most of the law in England and Wales falls into one of two categories: Statute law and common law. Statute law is law which has been compiled and passed by Parliament and is laid out for Judges to rule on. Common law has been handed down from the dawn of time and can come to exist through convention or judicial precedent. Examples of convention are the offences of murder and breach of the peace. The work of undercover officers is often affected by judicial precedent. This can often define what a word means and can only be over-ruled by a higher court. The main concern for undercover Officers are the rules covering entrapment and acting as an agent provocateur.

In short, they can act as criminals but cannot encourage the people are interacting with to carry out tasks they would not normally carry out themselves. The easiest way to explain it is to use an example of an undercover Officer trying to buy drugs.

The Officer cannot ask someone who supplies cannabis to supply heroin as this was not a drug they normally supply. To further confuse matters, the Officer has to ensure that they use the correct wording. Asking someone if they “have any heroin” is fine but asking if they “can get any” would mean that the Officer would be acting as an agent provocateur and encouraging the dealer to commit the offence of obtaining heroin to supply it to the Officer.

By Officer Z

See Part II here

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Silk (Series 3, Episode 4)

silk

Introduction

Well, we’re over the hump – the end of last week’s episode marked the half way point in the third series. Martha’s still going strong, but better than that, Caroline Warwick QC is back in London, larger than life and is on fire.

Plot

Extradition this week. But not a break from crime, as Rashid Hirani is accused of planning to blow up Arizona (or a part of it at least). His uncle is, as luck would have it, a solicitor who has heard of Martha’s reputation.

Surely with Martha going off to do extradition we will be spared the sight of Clive Reader prosecuting her? Clive’s done one extradition case, which is one more than Martha, but seems to be a bit of a whizz at it when he flicks through the papers.

Anyway, Martha smells a mental health defence, for Rashid, as well as Clive’s suggestion of arguing improper purpose. She meets Elizabeth Forester from the American Embassy (or at least, she claims to be – it sounded a pretty dodgy American accent) and gets a bit more information.

The High Court gives her a bit of time to get to the bottom of whether the US have been playing fast and loose. What do you do in those circumstances? You get a Special Advocate in. Of all the lawyers in all the land, who do you think gets the gig? Who else, but Clive Reader.

Unfortunately, it seems that Rashid has not been completely truthful. Luckily, it seems that there may be more to it than meets the eye (isn’t there always?). There is a fourth man who Martha tracks down and speaks to, before heading off to speak to Clive.

Luckily Clive is willing to break the rules and drop some hints to Martha about the secret stuff that he’s seen. And it’s interesting – I won’t give the final plot away, but no-one comes out of this that well. In case you wondered what happened to the mental health issues, it may be that Martha has got a way out of it for everyone …

Away from the Martha and Clive show, there’s plenty going on in Shoe Lane.

Caroline Warwick gives anyone that comes near her both barrels. A thousand lawyers were cheering at her comments about legal aid. And “We’re all stressed ducky, it’s the criminal bar” was exceptionally well delivered.

Amy Lang, the pupil, has had a bad week. She covered a mention in Caroline Warwick’s case that involved the ‘Albanian Paedophile’ trial, which involved it being brought forward. Caroline isn’t happy with this as she’s already so overworked and so Amy is sent off to schedulise all weekend.

Caroline opens the case to the jury based on Amy’s work, and then gets slapped down by one of the defence barristers who points out that she’s got the phone evidence all wrong, about which Caroline is pretty forgiving (presumably because she’s realised that she’s messed up majorly).

The complainant is cross-examined and is coming off badly. There is then a stroke of luck – Caroline ‘accidentally’ reads the defence proof of evidence, lies to the Judge about having told Amy what was in it, and then thinks ‘sod it’ (actually, I’m sure she’d say ‘fuck it’), before going and drinking vodka neat. Don’t judge it, we’ve all done it.

There is other stuff going on – Amy discloses the sexual harassment from Billy to Martha. Martha confronts Billy who explains that it was all a misunderstanding. The window of opportunity for the matter to be explained is passed, and Amy puts in an official complaint against Billy.

 

Review

The plots are getting slightly sillier, but the acting is still great. I know the dynamic between Martha and Clive is the backbone of the show, but I would like to see one week where they are not both involved in the same case. This week did actually raise an interesting ethical dilemma at the end, at least in the sense that Martha was torn as to whether she did the right thing.

But personally, I’d love to see Caroline Warwick get her own show – that would be something well worth watching. She is now firmly my favourite character.

 

Legal inconsistencies :

  • Elizabeth Forester would not be presenting the US case in Court as she appears to be witness in it. 
  • Blowing up the University of Arizona and killing four students would almost certainly be a federal, rather than a state, crime.
  • Whilst Caroline Warwick would probably not get a junior for her trial, this wouldn’t be because of legal aid – as she was prosecuting it would be up to the CPS to sort one.
  • Clive would probably not have been appointed as a Special Advocate, not really because they’re in the same chambers, more because he’s looked at the papers and spoken to Martha about it. After he had been appointed, he would not have been as open as he was with Martha.
  • The discussion as to whether Caroline would have to withdraw would not have been taken in the Judge’s chambers – it would have been in open Court.

If there are any extradition lawyers out there who want to write this up or comment on it, then please get in touch.

There is a good summary of the issues in extradition (and a look at mental health issues) in the case Babar Ahmad and others.

 

Laura Cunliffe jailed for microwaving kitten to death

Image from Daily Mail

Image from Daily Mail

In the Daily Mail on Friday 21 February 2014, it was reported that unemployed Laura Cunliffe, 23 from Barnsley, pleaded guilty at Barnsley Magistrates’ Court to causing unnecessary suffering of an animal.

On 13 March 2014, she was sentenced to 14 weeks’ imprisonment.

The offence

Animal Welfare Act 2006 s 4 creates the offence of causing unnecessary suffering. It is a summary only offence meaning it can only be tried in a Magistrates’ Court. The maximum sentence is 6 months and/or a £20,000 fine.

Facts

The Mail’s article, which contains some disturbing pictures, can be seen here.

She had a 4 month old kitten – Mowgli.

Mowgli reportedly ‘attacked’ Ms Cunliffe’s goldfish. Ms Cunliffe then appears to have placed Mowgli into the microwave and set it to cook for 5 minutes.

Mowgli reportedly was still alive when Ms Cunliffe removed him from the microwave, but was struggling to breathe. Ms Cunliffe then took Mowgli to a relatives house. He died some 90 minutes after Ms Cunliffe removed him from the microwave.

RSPCA

The prosecution was brought by the RSPCA, who reportedly said: ‘The main reason the RSPCA took this case in order to achieve disqualifications in order to protect animals and prevent further suffer in the future.’

The deputy chief inspector said: ‘It is particularly horrendous because of the period of suffering for the kitten which would have been awful.’

She said that the exposure to the radiation in the microwave would have cooked the animal’s internal organs.

She said: ‘It is an horrific case in the fact that the death of the cat would have been prolonged and it is unimaginable what it would have gone through taking some time to die.

Mitigation

Prior to the sentencing hearing, her defence advocate reportedly said that Ms Cunliffe had suffered from psychosis and depression, having been detained under Mental Health legislation ‘several times’.

The BBC reported that in mitigation, her solicitor said that Ms Cunliffe had longstanding problems with psychotic depression and had been sectioned under the Mental Health Act 20 times.

Sentencing guidelines

There are guidelines which apply to this offence. See numbered page 22 [40 of the PDF]. There are three categories and arguably this offences does not neatly fall into any of them.

The bottom category describes ‘One impulsive act causing little or no injury’ which this is clearly not.

The middle category describes: Several incidents of deliberate ill-treatment/frightening animal(s); medium term neglect’ which doesn’t seem to fit either.

The top category describes: ‘Attempt to kill/torture; animal baiting/conducting or permitting cock-fighting etc.; prolonged neglect’ which on balance isn’t a perfect match either, as one presumes Ms Cunliffe pleaded guilty on the basis that she did not intend to kill or torture the animal.

Judge’s comments

The BBC reported: District Judge John Foster said “This was an act of utterly horrendous cruelty on your part on an animal that, as far as I could see, had come to trust you and rely on you.”

Sentence imposed

14 weeks’ imprisonment, and a disqualification from owning or keeping etc. animals, under Protection of Animals Act 1911 s 2, for life.

Comment

The starting point for the top category in the guidelines is 18 weeks. Ms Cunliffe pleaded guilty and so some credit (presumably 1/3) would have been given for that. Her mental health issues provide strong mitigation and so despite the seriousness of the offence, 14 weeks immediate custody appears to be over the top (even with the aggravating factor that the kitten died). Perhaps a suspended sentence might have been more appropriate and proportionate, considering Ms Cunliffe’s difficulties. It would appear that treatment, not abandonment, is what is required.

The disqualification order seems entirely appropriate.

Law & Order UK – s8, ep1 – Flaw

Flaw

Introduction

Halfway through the third series of silk, ITV puts forward its quasi-rival – Law & Order UK, which is starting its 8th (8th?! Seriously? How?) series. If Silk strives for accuracy and occasionally misses in the cause of drama, Law & Order at least has no such pretensions – it’s relationship with verisimilitude is casual to say the least.

Still, it’s a Courtroom Drama, so we’ve got to watch it, right?

Plot

Bradley Walsh, the one constant in this show, is back as DS Ronnie Brooks (sporting a very Columbo-style mac and Peter Falk’s world-weary look ). There’s a new kid on the block to go with him – DS Joe Hawkins. He’s got a background in child protection which, as luck would have it, turns out to be very useful indeed…

The episode starts with a seemingly straightforward car crash, but the victim is missing his hands and teeth. This gruesome detail causes some major overacting in Harry’s wife – Lindsey Bernstein. The usual motives – love, money and jealousy are investigated, but the police aren’t getting their man.

Meanwhile, Ronnie wants to check his evidence in an upcoming case involving a hit on a drug dealer and his family. For some reason two people from the CPS ‘help’ him (R v Dale Horgan) with his testimony but giving him a run over. Ronnie has been desperate to get him for ages and doesn’t want him to get off this time (can you guess what happens next?).

These two plotlines clash when Harry’s sister, who is a juror in the trial, finds Harry’s severed hands on her doorstep.

After this we switch to the Court part. The juror who found an unwelcome present of her husband in law’s hands one morning has to be discharged. The defence (rightly) want the whole jury to go and start again. The prosecution have a better idea – let’s just crack on without a jury.

The Judge agrees, but then agrees to discharge herself and so the trial gets swapped to a Judge straight out of central casting. The Prosecution are pleased as they get one over the defence. Then they get worried as they remember they haven’t got any actual evidence, which is something you would expect a High Court Judge to notice. Lockwood J does in fact notice, and the Prosecution come second in R v Horgan.

Is that the end? Like heck it is. This is fiction, so it is all nicely wrapped up in less than 60 minutes and, from the depths of defeat, the good guys pull it together and get their man.

Review

As long as you’re prepared to suspend your disbelief, this is all good fun. It’s pretty standard police procedural fare, that’s not going to win any awards for originality, but it’s pretty well acted all told, and and fairly well scripted and directed. As a lawyer it is hard to watch without wincing, but I’m sure doctors feel the same about Casualty and I watched the end of Waterloo Road by accident which may or may not be accurate.

And I do like Bradley Walsh, even if he is a detective that could have been compiled by a computer from a list of cliches. Although this may be that I’m hoping that by Series 9 he will actually morph into Columbo, which would be awesome.

Legal Inconsistencies:

So, so many to mention with this show. We won’t go too much in to the police investigation, but it’s a lot smoother than real life – one example being they watch the CCTV within 24 hours and manage not to lose it by the time of the trial. In fairness, there’s normally more, but this time there wasn’t that much court activity…

  • Where there are two barristers for one side (as in this case) they sit one behind another, not side by side
  • The Judge would probably hear oral ‘submissions’ not ‘representations’.
  • If a jury is discharged in these circumstances, then the trial would probably go ahead in front of the same Judge (not least because it saves the witnesses giving evidence all over again, as happened in this case)
  • Barristers are now allowed to talk to the media, but it’s pretty rare that you get one reading a client’s statement from the steps of the Court
  • Christ knows what the solicitor in Kris Akron’s police interview was doing, but he should probably have got a bit more involved
  • Mr Horgan would have been charged with the murder of Harry Bernstein not a conspiracy to murder him. This is on the basis that he was the instigator. The reason why the prosecution would want a murder charge is that this carries a mandatory sentence of life imprisonment.

Jury Tampering

This obviously happens, but is very rare. The provisions to have a trial by Judge alone is governed by Part 7 Criminal Justice Act 2003. For a good analysis of this issue (and what happens when jury nobbling is suspected during a trial) see Guthrie [2011] EWCA Crim 1338.

The case of Twomey is referred to (there are actually two – an interlocutory appeal and a full one after conviction) which is also worth looking at if you’re interested.

Silk (Series 3, Episode 3)

015

Introduction

Last week saw Martha tackle a case on the football pitch. This week the most important think that Martha did of course was to turn up at the legal aid protests last Friday. This didn’t feature in tonight’s episode sadly, instead it was mainly mercy killings and office politics.

 

Plot

The main storyline involves a mercy killing. Sarah Stephens daughter is a tetraplegic and, in an attempt to ease her suffering, gives her a fatal overdose. She therefore finds herself on the wrong end of a murder charge. Who does she get to defend her? Who do you think? But who is going to be prosecuting it? With the near retirement of Alan Cowdrey QC and Caroline Warwick QC going off to do a nine-handed (meaning nine defendants) pub fight, there is only one criminal silk left in London it seems – Clive Reader, who had been given the case at the start .

Ms Stephens has a conference where she fesses everything to Martha and says that Jo, her daughter, wanted to die. Cuts at the CPS mean that Clive is having a conference with one of the prosecution witnesses, Patrick Stephens (Sarah’s ex-husband) trying to get him to give evidence.

Martha gets to the point – there isn’t a defence to the charge of murder. After a cheeky ‘counsel to counsel’ conversation in the pub between our two favourite barristers, Clive decides to go ahead with the murder charge, despite the offer to plead guilty to Assisted Suicide. Fortunately to us of course, or else we’d see an emotive, but less satisfying, plea in mitigation and would be in bed by half nine.

So the trial begins in front of the quietest Judge I’ve ever been in front of. None of the dodgy questioning gets his interest, but he finally speaks to let Martha carry on when she gets into some catholic dogma. The questioning gets pretty tense, so tense in fact that Martha gets a slap from her client.

It gets worse as we find out that Jo (the daughter) had been dumped by her boyfriend a week before her death). Worse, Martha smells a rat as the prosecution case unfolds. She ends by cross-examining Sarah and working out that it was Fraser (the youngest son) wot done it. It was even recorded on his phone, proving beyond doubt that Clive was about to lose yet another case to Martha. After some remarkably quick instruction-taking, that’s it. Sarah leaves Court a free woman and the CPS decide not to prosecute Fraser.

Meanwhile, Alan Cowdrey’s retirement leaves a vacancy as head of Chambers. The two frontrunners are the two protagonists in R v Stephens (although there’s no indication that Martha is interested). Caroline throws her wig into the ring as well (am I the only one who thinks that she should definitely have got it?).

There’s more office politics with the conflict between the ‘traditional’ clerking model of Billy, and the new Chambers Practice Manager. There’s about to be more as he appears to be sexually harassing Amy the pupil. He finally reveals his medical condition to Martha.

 

Review

The start of the Radio Times review reads “Silk is like a big, luxury car. Even when it’s not barrelling along, it cossets us nicely, purring away like a well-oiled machine, every surface polished and smooth. That makes for a civilised journey, regardless of the terrain; it’s not always a thrill ride, but it’s a classy place to be.

That pretty well sums up this episode. The main plotline felt, frankly, formulaic and you knew what was going to happen. Despite that, it is well acted and written and hopefully will pick up the originality now we’re half way through.

Legal inconsistencies :

  • Balham Youth Court has now shut (h/t forthedefence) – although it wouldn’t be the first time some poor pupil has been sent of on a wild goose chase
  • The law on mercy killing is not right – see below
  • Clive woudn’t be having a conference with the father, a civilian witness of fact.
  • Unless someone died, a silk would not be doing a violent disorder, even if there are nine defendants
  • Discussions about pleading guilty to Assisted Suicide as an alternative to Murder would not be happening in a pub like that
  • It’s not clear if Amy Lang (Martha’s pupil) was behind her as a pupil (unlikely as in her second six she would be doing her own cases in the Magistrates’ Court) or as a junior – which would be negligent given her lack of experience (even allowing for the fact that this case would have taken six months or so to get to trial).
  • The video of Harry’s account (ABE) would not have been done by Clive, but by police officers (the equipment was a bit dodgy as well). There is provision for video recorded evidence in chief (but this is not done by the prosecuting lawyer) and cross-examination (but this is not in force yet, but a pilot is occuring). Similarly with Fraser.
  • Martha would not have been allowed to have cross-examined her own client in the way she did
  • Once a jury has been sworn, they are the only people that can acquit someone. After Clive had ‘offered no further evidence’ it would have had to be the jury that entered the not guilty verdict.

 

Please email/comment with ones that we’ve missed, and ones that we’ve got wrong …

Mercy Killings – the law

The law is clear – a mercy killing is murder, just like any other intentional killing (unless there is something about the defendant’s mental state – and it is not unusual for the prosecution to stretch the rules on this, at least in the sense of taking a plea to manslaughter in a sympathetic case). The fact that the ‘victim’ wanted to die is not relevant to whether the charge of murder is appropriate or not. Consent is not a defence to murder.

It is a matter of strong mitigation however, and so the tariff will often on the shorter end of the spectrum. See the case of Frances Inglis for a famous example where the tariff was reduced to 5 years.

 

Silk

 

 

A view from…an officer interviewing a suspect – Part II

Polygraph-simpson

My approach to / views on suspect interviewing:

 After you join the police, it slowly but surely dawns on you that people will and do get away with crimes that they have committed, all the time, despite your best efforts.

It can be frustrating when this happens, but it’s part of living in a country where suspects don’t have to prove their innocence, and where the defendant gets the benefit of the doubt. Indeed, I’d be entitled to that doubt too if I was ever charged with a crime.

Our criminal justice system is essentially a game, where only what can be proved matters, and what really happened doesn’t matter at all. It’s a game with very real victims and very real consequences for those on the receiving end of criminal activity states a source at http://hurwitzlawgroup.com. I accept too that there can be very real consequences for those convicted of committing crimes, although only rarely do I feel any sympathy for those convicted.

I would say, although there’s no way of proving it, that we the police arrest the right people the vast majority of the time. I would say that less than 10-15% of those who find themselves getting arrested on suspicion of committing a crime are genuinely innocent – by that I don’t mean innocent in the eyes of the law, I mean that they really didn’t do it.

As I mentioned above, when dealing with serious and complex offences admissions by suspects in interview are very rare. So, with the odds stacked against us as they are with our system, how can we use the suspect interview to maximise the chance of getting good results for victims of crime, while playing the game within the rules?

The first thing to realise is that guilty suspects, if they’re going to speak to us, lie. They lie all the time and they lie about everything. As such, if a suspect gives an account, it’s important to get as much information from them as possible and pin them down to their account. Then, if we can later show that they were lying about one aspect of their account it can throw doubt on the rest of it too.

If a suspect in interview disagrees with something that a witness has said, I like to ask the suspect if the witness is lying. They will often say yes, which can open up the suspect’s bad character at court further down the line (gateway ‘g’ of the bad character provisions).

Similarly, I like to ask a repeat offenders “is this the type of thing you would do?”, which is a difficult question for them to answer. If they say no, then their bad character could again go in at court further down the line (gateway ‘f’ of the bad character provisions). If they say yes, then it can make their account seem less plausible.

‘Bad character’ basically means information about the suspect which suggests that they may have behaved in badly in the past, including details of their previous criminal convictions.

Then we have special warnings, which can be given to a suspect when they fail to account for things found at the time of their arrest (like stolen property being in their house), or if they fail to explain why they were somewhere close to the crime scene when they were arrested. If a special warning is given, a judge can later tell a jury to consider why the suspect didn’t give an answer to such questions, which can help to tip the balance of the case in our favour.

Of all the parts that make up a criminal investigation suspect interviewing is, for me, one of the most interesting and enjoyable areas. It’s good to finally sit across from a suspect you’ve spent a long time trying to identify, or to see a suspect squirm when you ‘hit’ them with evidence that they know means that they are going to jail.

It’s even nicer when someone has the guts to admit what they’ve done.

By Officer Y

Oxfam Fraud officer pleads guilty to, er fraud (Edward McKenzie-Green)

oxfam

It’s all a bit awkward when your counter-fraud officer gets hauled before the beaks (in the case actually, the Old Bailey) for fraud offences.

Edward McKenzie-Green was the head of counter-fraud. The total amount was £62,857.58 that was taken in the year from April 2011, this was achieved by the creation of payments to fictitious companies controlled by Mr McKenzie-Green.

From reading the news reports, it appear that there is quite a lot of mitigation for when Mr McKenzie-Green is sentenced on 16th May. What will he get?

Although the offences are charged under the Fraud Act, the relevant guidelines are those under the Theft Act (theft in breach of trust). I would have thought that this was a ‘high degree of trust’ given the nature of his job.

There was a plea of guilty but, judging by the time when Mr McKenzie-Green was arrested this would have been very near, if not at, the day of trial, so only a small amount of credit will be available.

On that basis (looking at the table on page 11) it would appear that the starting point would be just over three years because of the amount involved, taking it back down to three years after the plea of guilty is taken into account. This is above the length that could be suspended, but it may be that once all the mitigation is put forward the sentence will be lower than that. We will bookmark it to come back to when he is sentenced.