Why legal aid reforms must be stopped, Exhibit D: the "fraudster"

Innocent people could be in jail if proposed changes to the legal system are implemented. Here is one of them.

This post is the last in a series that seeks to dispel the myth that everyone who ends up in court is a scumbag criminal. It is a reminder that anyone who is accused of a crime is, or should be, considered innocent until proven guilty. Everyone who is accused of a crime should be entitled to a fair trial and the chance to clear their name.

The right to choose your legal representative and to a fair trial has been enshrined in our justice system for hundreds of years. Right now your rights are under threat from proposals in the MOJ consultation paper Transforming Legal Aid: Delivering a more credible and efficient system. I hope that reading this post will help you understand what these proposals will mean for our justice system.  I hope that once you understand you will want to sign the Save UK Justice petition to have these proposals debated in parliament.

Our previous scumbag criminals were all men accused of violent and or unsavoury offences against people:  a “pornographer”, a “murderer” and a “paedophile”. Exhibit D is our first and only woman defendant. Regardless of your gender, if you have ever had cross words at work, flounced out of the office, fallen out with a colleague or a manager, raised a grievance or simply had cause for a good old moan, this story should sound a warning for you.

NB this is a true story. Certain details that don’t relate to the factual and legal process have been changed to protect those who were involved.

In the beginning

This case actually happened several years ago, before I met my husband.  It was the first case that he ever told me about, on our 2nd or 3rd date. I had studiously avoided the topic of his work up to this point, because I didn’t want to come across as a gold digger. I still believed in myth #1, that of the fat cat lawyer, and thought I might be on to a good thing (I was, just not in the way that I thought). But, after a couple of glasses of wine, I did what about 90 per cent of people do when they meet a criminal lawyer for the first time. In a half disgusted, wholly ignorant tone of voice I asked: “how can you defend someone who is guilty?”. He sighed, inwardly bemoaning my lack of originality, and told me the tale of Exhibit D.

The fraud

Exhibit D had been accused of fraud against her employer. She worked as the catering manager at a large industrial complex. There were a number of restaurants and snack bars across the sprawling site, each with its own till. Exhibit D was responsible for all aspects of the catering services and facilities, including setting up the floats every morning and balancing the tills and doing the banking at the end of the day.

The records showed that the tills balanced pretty much every day, any discrepancies were for trivial amounts, just a few pence over or under. But an anonymous tip off led to an audit, which led to a finding that although the tills had balanced, the lifetime takings recorded by each till did not match the cash that had been banked.

An internal investigation found that Exhibit D was the only possible culprit and she was suspended pending further investigations. She resigned from her post. The incident was reported to the police and the records were passed to the Crown Prosecution Service. Exhibit D was charged with fraud.

To plead or not to plead

When my husband received the prosecution papers it appeared quite obvious that Exhibit D was as guilty as they come. He arranged to meet her before the trial, intending to advise her of the apparent strength of the case against her.

Exhibit D turned out to be a pretty, well spoken young woman who never been in trouble before in her life. She said:

“I know it looks dreadful, I know what it looks like. I can’t explain it in any way, but I can honestly say that I didn’t do this.”

She wanted to have her day in court. My husband thought that this was not in her best interests.

Her day in court

The day of the trial arrived. My husband figured they were on a hiding to nothing, but all clients are entitled to the best available defence so he got stuck in. As Exhibit D had not been able to give a positive defence, or any explanation whatsoever, he didn’t really knowing where he was going with it, or where they would end up.

As the witnesses began to give their evidence some themes started to emerge. The catering staff were all women of a certain age. They were all unable to hide their intense dislike of Exhibit D. The most outspoken of the witnesses had been promoted into the vacancy left by Exhibit D’s resignation. It turned out that she had previously applied for the catering manager job and had been unsuccessful, because Exhibit D had been appointed.

In the course of the trial it came out that, due to the slightly odd staffing rota and reconfiguration of the catering service and till points by Exhibit D’s predecessor, there were a number of possible explanations for the discrepancies. Only one of these explanations involved wrongdoing, and not necessarily by Exhibit D. All of the other explanations pointed to her having been set up.

Under cross examination the company accountant admitted that the evidence was not conclusive and that innocent explanations would have produced the same accounting results. He had discounted the more benign explanations because of the “information” that had been brought to his attention by the other staff. Under cross examination some of this “information” turned out to have been impossible and / or plain nonsense. The facilities manager, Exhibit D’s line manager, said that she had been the subject of several trivial complaints from her staff and co-workers. He had investigated all of these complaints and found them all to be unsubstantiated.

In his summing up the judge remarked that there was so much venom in some of the witnesses’ evidence relating to Exhibit D, that he wondered if the jury would be able to consider their evidence to be wholly objective and reliable. The jury retired to consider their verdict. They stayed out long enough to have a cup of tea. The not guilty verdict was unanimous.

Afterwards

Exhibit D was unable to speak to my husband, or to anyone else, after receiving her verdict because she was sobbing uncontrollably. Her boyfriend had to help her out of the court building.

A few days later Exhibit D sent my husband a card. He can count on the fingers of one hand the number of legally aided clients who have done anything other than shake his hand and say thanks (not to say that anyone is obliged to acknowledge his work in anyway, just to emphasise the rarity of the event). In the card she wrote:

“thank you for giving me my life back”

(and some other stuff about how what a great man he is which will no doubt sound schmaltzy if repeated here). My husband still has that card. When he’s feeling despondent he reads it and remembers why he does what he does. Sometimes I remind him to read it too.

In our adversarial system there will always be cases where you never find out exactly what happened, even though the defendant is found not guilty. My husband never did get to the bottom of this case, but he (and presumably the and jury) were firmly of the opinion that Exhibit D’s staff and colleagues cooked it all up because they didn’t like her, and because their ringleader wanted her job. They had tried to get rid of her by making trivial complaints, but they couldn’t make anything stick and she wasn’t taking the hint. So they went for broke and framed her for fraud.

Why this story should matter to you 

  1. Innocent until proven guilty – this is a recurrent theme.  Before I knew better I’d asked my husband “how can you defend someone who is guilty?”. The answer, of course, is that a lawyer cannot know if a client is guilty or not guilty. The prosecution papers will always make the defendant look guilty. This case reminded my husband that even if all the evidence points to someone being guilty, it still doesn’t mean that they are. When I hear someone ask my husband that question now I sigh at their lack of insight and originality.
  2. Finger pointing – another recurrent theme in this series of posts (see also exhibit A – the “child pornographer”). Perhaps you think that you are a decent individual and that you surround yourself with like minded souls, and as such you would never be vulnerable to false accusation, whether misguided or malicious. You are wrong. If you have a job and you have colleagues, you could find yourself in the same position as Exhibit D.
  3. Targets – if Exhibit D’s case had come up under the MOJ proposals her inexperienced, target driven lawyer would have read the papers and advised her to plead guilty. The lawyer would get paid the same whether she pleads guilty or not guilty so there would be no incentive to do the huge amounts of extra work required to take the case to trial. This is one aspect of the proposals that will lead to what Sadiq Khan MP and Shadow Justice Minister called “sate sponsored miscarriages of justice”.
  4. The right to choose – if Exhibit D’s case had come up under the MOJ proposals she would not have had the option to look for another lawyer, someone willing to take the case to trial, unless she could have found the money to pay privately. Chris Grayling, the Justice Minister has defended the removal of client choice because he doesn’t “believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills”. I’ll deal with this breathtakingly arrogant and ill informed idea in my next post.

Help save our justice system

If the proposed changes to the criminal justice system come to pass, in future the lives of young women like Exhibit D will be ruined simply because their colleagues took an arbitrary and unjustified dislike to them.

The Save UK Justice e-petition needs 100 000 people to sign it in order for there to be a debate in parliament. If you have not already signed the petition please do. If you have already signed it please talk to your friends and family and ask them to do the same.

This piece is part of a series of posts exhibiting people at risk due to legal aid changes. It is cross-posted with permission from the A Barrister's Wife blog.

A till receipt on a countertop. Photograph: Getty Images

Barrister's Wife is a barrister's wife. She writes a pseudonymous blog which offers a behind closed doors view of the justice system.

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Let's turn RBS into a bank for the public interest

A tarnished symbol of global finance could be remade as a network of local banks. 

The Royal Bank of Scotland has now been losing money for nine consecutive years. Today’s announcement of a further £7bn yearly loss at the publicly-owned bank is just the latest evidence that RBS is essentially unsellable. The difference this time is that the Government seems finally to have accepted that fact.

Up until now, the government had been reluctant to intervene in the running of the business, instead insisting that it will be sold back to the private sector when the time is right. But these losses come just a week after the government announced that it is abandoning plans to sell Williams & Glynn – an RBS subsidiary which has over 300 branches and £22bn of customer deposits.

After a series of expensive delays and a lack of buyer interest, the government now plans to retain Williams & Glynn within the RBS group and instead attempt to boost competition in the business lending market by granting smaller "challenger banks" access to RBS’s branch infrastructure. It also plans to provide funding to encourage small businesses to switch their accounts away from RBS.

As a major public asset, RBS should be used to help achieve wider objectives. Improving how the banking sector serves small businesses should be the top priority, and it is good to see the government start to move in this direction. But to make the most of RBS, they should be going much further.

The public stake in RBS gives us a unique opportunity to create new banking institutions that will genuinely put the interests of the UK’s small businesses first. The New Economics Foundation has proposed turning RBS into a network of local banks with a public interest mandate to serve their local area, lend to small businesses and provide universal access to banking services. If the government is serious about rebalancing the economy and meeting the needs of those who feel left behind, this is the path they should take with RBS.

Small and medium sized enterprises are the lifeblood of the UK economy, and they depend on banking services to fund investment and provide a safe place to store money. For centuries a healthy relationship between businesses and banks has been a cornerstone of UK prosperity.

However, in recent decades this relationship has broken down. Small businesses have repeatedly fallen victim to exploitative practice by the big banks, including the the mis-selling of loans and instances of deliberate asset stripping. Affected business owners have not only lost their livelihoods due to the stress of their treatment at the hands of these banks, but have also experienced family break-ups and deteriorating physical and mental health. Others have been made homeless or bankrupt.

Meanwhile, many businesses struggle to get access to the finance they need to grow and expand. Small firms have always had trouble accessing finance, but in recent decades this problem has intensified as the UK banking sector has come to be dominated by a handful of large, universal, shareholder-owned banks.

Without a focus on specific geographical areas or social objectives, these banks choose to lend to the most profitable activities, and lending to local businesses tends to be less profitable than other activities such as mortgage lending and lending to other financial institutions.

The result is that since the mid-1980s the share of lending going to non-financial businesses has been falling rapidly. Today, lending to small and medium sized businesses accounts for just 4 per cent of bank lending.

Of the relatively small amount of business lending that does occur in the UK, most is heavily concentrated in London and surrounding areas. The UK’s homogenous and highly concentrated banking sector is therefore hampering economic development, starving communities of investment and making regional imbalances worse.

The government’s plans to encourage business customers to switch away from RBS to another bank will not do much to solve this problem. With the market dominated by a small number of large shareholder-owned banks who all behave in similar ways (and who have been hit by repeated scandals), businesses do not have any real choice.

If the government were to go further and turn RBS into a network of local banks, it would be a vital first step in regenerating disenfranchised communities, rebalancing the UK’s economy and staving off any economic downturn that may be on the horizon. Evidence shows that geographically limited stakeholder banks direct a much greater proportion of their capital towards lending in the real economy. By only investing in their local area, these banks help create and retain wealth regionally rather than making existing geographic imbalances worce.

Big, deep challenges require big, deep solutions. It’s time for the government to make banking work for small businesses once again.

Laurie Macfarlane is an economist at the New Economics Foundation