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.

How Jim Murphy's mistake cost Labour - and helped make Ruth Davidson

Scottish Labour's former leader's great mistake was to run away from Labour's Scottish referendum, not on it.

The strange revival of Conservative Scotland? Another poll from north of the border, this time from the Times and YouGov, shows the Tories experiencing a revival in Scotland, up to 28 per cent of the vote, enough to net seven extra seats from the SNP.

Adding to the Nationalists’ misery, according to the same poll, they would lose East Dunbartonshire to the Liberal Democrats, reducing their strength in the Commons to a still-formidable 47 seats.

It could be worse than the polls suggest, however. In the elections to the Scottish Parliament last year, parties which backed a No vote in the referendum did better in the first-past-the-post seats than the polls would have suggested – thanks to tactical voting by No voters, who backed whichever party had the best chance of beating the SNP.

The strategic insight of Ruth Davidson, the Conservative leader in Scotland, was to to recast her party as the loudest defender of the Union between Scotland and the rest of the United Kingdom. She has absorbed large chunks of that vote from the Liberal Democrats and Labour, but, paradoxically, at the Holyrood elections at least, the “Unionist coalition” she assembled helped those parties even though it cost the vote share.

The big thing to watch is not just where the parties of the Union make gains, but where they successfully form strong second-places against whoever the strongest pro-Union party is.

Davidson’s popularity and eye for a good photo opportunity – which came first is an interesting question – mean that the natural benefactor in most places will likely be the Tories.

But it could have been very different. The first politician to hit successfully upon the “last defender of the Union” routine was Ian Murray, the last Labour MP in Scotland, who squeezed both the  Liberal Democrat and Conservative vote in his seat of Edinburgh South.

His then-leader in Scotland, Jim Murphy, had a different idea. He fought the election in 2015 to the SNP’s left, with the slogan of “Whether you’re Yes, or No, the Tories have got to go”.  There were a couple of problems with that approach, as one  former staffer put it: “Firstly, the SNP weren’t going to put the Tories in, and everyone knew it. Secondly, no-one but us wanted to move on [from the referendum]”.

Then again under different leadership, this time under Kezia Dugdale, Scottish Labour once again fought a campaign explicitly to the left of the SNP, promising to increase taxation to blunt cuts devolved from Westminster, and an agnostic position on the referendum. Dugdale said she’d be open to voting to leave the United Kingdom if Britain left the European Union. Senior Scottish Labour figures flirted with the idea that the party might be neutral in a forthcoming election. Once again, the party tried to move on – but no-one else wanted to move on.

How different things might be if instead of running away from their referendum campaign, Jim Murphy had run towards it in 2015. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.

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