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.

Photo: Getty
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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder