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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Find the EU renegotiation demands dull? Me too – but they are important

It's an old trick: smother anything in enough jargon and you can avoid being held accountable for it.

I don’t know about you, but I found the details of Britain’s European Union renegotiation demands quite hard to read. Literally. My eye kept gliding past them, in an endless quest for something more interesting in the paragraph ahead. It was as if the word “subsidiarity” had been smeared in grease. I haven’t felt tedium quite like this since I read The Lord of the Rings and found I slid straight past anything written in italics, reasoning that it was probably another interminable Elvish poem. (“The wind was in his flowing hair/The foam about him shone;/Afar they saw him strong and fair/Go riding like a swan.”)

Anyone who writes about politics encounters this; I call it Subclause Syndrome. Smother anything in enough jargon, whirr enough footnotes into the air, and you have a very effective shield for protecting yourself from accountability – better even than gutting the Freedom of Information laws, although the government seems quite keen on that, too. No wonder so much of our political conversation ends up being about personality: if we can’t hope to master all the technicalities, the next best thing is to trust the person to whom we have delegated that job.

Anyway, after 15 cups of coffee, three ice-bucket challenges and a bottle of poppers I borrowed from a Tory MP, I finally made it through. I didn’t feel much more enlightened, though, because there were notable omissions – no mention, thankfully, of rolling back employment protections – and elsewhere there was a touching faith in the power of adding “language” to official documents.

One thing did stand out, however. For months, we have been told that it is a terrible problem that migrants from Europe are sending child benefit to their families back home. In future, the amount that can be claimed will start at zero and it will reach full whack only after four years of working in Britain. Even better, to reduce the alleged “pull factor” of our generous in-work benefits regime, the child benefit rate will be paid on a ratio calculated according to average wages in the home country.

What a waste of time. At the moment, only £30m in child benefit is sent out of the country each year: quite a large sum if you’re doing a whip round for a retirement gift for a colleague, but basically a rounding error in the Department for Work and Pensions budget.

Only 20,000 workers, and 34,000 children, are involved. And yet, apparently, this makes it worth introducing 28 different rates of child benefit to be administered by the DWP. We are given to understand that Iain Duncan Smith thinks this is barmy – and this is a man optimistic enough about his department’s computer systems to predict in 2013 that 4.46 million people would be claiming Universal Credit by now*.

David Cameron’s renegotiation package was comprised exclusively of what Doctor Who fans call handwavium – a magic substance with no obvious physical attributes, which nonetheless helpfully advances the plot. In this case, the renegotiation covers up the fact that the Prime Minister always wanted to argue to stay in Europe, but needed a handy fig leaf to do so.

Brace yourself for a sentence you might not read again in the New Statesman, but this makes me feel sorry for Chris Grayling. He and other Outers in the cabinet have to wait at least two weeks for Cameron to get the demands signed off; all the while, Cameron can subtly make the case for staying in Europe, while they are bound to keep quiet because of collective responsibility.

When that stricture lifts, the high-ranking Eurosceptics will at last be free to make the case they have been sitting on for years. I have three strong beliefs about what will happen next. First, that everyone confidently predicting a paralysing civil war in the Tory ranks is doing so more in hope than expectation. Some on the left feel that if Labour is going to be divided over Trident, it is only fair that the Tories be split down the middle, too. They forget that power, and patronage, are strong solvents: there has already been much muttering about low-level blackmail from the high command, with MPs warned about the dire influence of disloyalty on their career prospects.

Second, the Europe campaign will feature large doses of both sides solemnly advising the other that they need to make “a positive case”. This will be roundly ignored. The Remain team will run a fear campaign based on job losses, access to the single market and “losing our seat at the table”; Leave will run a fear campaign based on the steady advance of whatever collective noun for migrants sounds just the right side of racist. (Current favourite: “hordes”.)

Third, the number of Britons making a decision based on a complete understanding of the renegotiation, and the future terms of our membership, will be vanishingly small. It is simply impossible to read about subsidiarity for more than an hour without lapsing into a coma.

Yet, funnily enough, this isn’t necessarily a bad thing. Just as the absurd complexity of policy frees us to talk instead about character, so the onset of Subclause Syndrome in the EU debate will allow us to ask ourselves a more profound, defining question: what kind of country do we want Britain to be? Polling suggests that very few of us see ourselves as “European” rather than Scottish, or British, but are we a country that feels open and looks outwards, or one that thinks this is the best it’s going to get, and we need to protect what we have? That’s more vital than any subclause. l

* For those of you keeping score at home, Universal Credit is now allegedly going to be implemented by 2021. Incidentally, George Osborne has recently discovered that it’s a great source of handwavium; tax credit cuts have been postponed because UC will render such huge savings that they aren’t needed.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle