Introduction

Note: This is prompted by a post from Lucy Reed on the Pink Tape family law blog about whether a parent facing family law proceedings should worry if their barrister has also acted for social services in the past (or in other current cases). It’s a great take down of former MP John Hemming’s slightly ‘unorthodox’ take in the professional conducts, and is well worth a read.

This is an issue that often comes up in criminal law. Barristers in chambers are self-employed and, nowadays at least, will normally specialise in one or two areas of the law. But it’s not unusual for barristers who do criminal law to both prosecute and defence.

Obviously not in the same case, but I have seen it many times where a barrister, Ms Smith, is in Court 4 at 10am representing a defendant. Then 15 minutes later she has swapped sides and is representing the prosecution in the same court room. Is that wrong? Should her defence client be concerned?

Is this a problem?

The CPS are obviously used to this, but for individual defendants, particularly those that aren’t particularly familiar with the system, it may seem odd. If my barrister gets part of their income from the CPS doesn’t that mean that sometimes they’ll ‘pull their punches’ in my case for fear of what the CPS may say?

I don’t think that it’s a problem at all. Firstly, on a practical level,the CPS is a pretty big organisation. Unless it’s a highly specialist unit, it’s unlikely that anyone in it would know what ‘their’ barrister in a particular case is doing the rest of the time. But it’s not just the practicalities.

Although there are more and more people who are doing just one of prosecution or defence, I think that the majority of people still do both. It’s ‘the way that things have always been done’. This may or may not be a good reason for carrying on doing something in general, but it does mean that the CPS do not expect barristers to only prosecute, and would not expect a defence lawyer to approach their defence case differently whether or not they sometimes prosecute.

In days gone by, barristers had no choice, in theory at least. Due to the cab rank rule, barristers couldn’t pick and choose which cases they do, so would have to do both. Even if that ever existed, it has gone now in crime, in that fees for most criminal cases were ‘undeemed’ – taken out of the scope of the rule.

Now is not the time to analyse whether or not that is actually the exact position, but the idea behind it (that barristers don’t just act for one side only) lives on.

It may also work to your advantage, in that someone who prosecutes obviously has a much better knowledge of how the CPS works than someone who doesn’t. This may mean that they find it easier to hone in on the weaknesses in the CPS case, and know their vulnerabilities.

That’s not to say you should only have a barrister that prosecutes and defends. Just that, in my view, it’s not a way of telling whether you should be using that barrister or not.

So, should I be worried?

Although it may seem odd, I’d say it doesn’t matter one bit if your barrister only defends, or prosecutes as well as defends.

I would recommend reading Lucy’s post as to what questions you should be asking of your lawyer, they’re applicable to criminal law too.

There are brilliant defence lawyers who don’t prosecute (and fairly ropey ones who do of course), and brilliant ones who do. The key point is that you shouldn’t use that as test. If your lawyer does both, don’t be alarmed. It’s normal, and it doesn’t mean that they will fight for you any less

Note 2 : I’m using barrister here, but the same rules apply to solicitor advocates too of course. It’s just that the majority of advocates who do prosecution and defence work are freelance barristers in chambers. 

In February 2016 I was in the Court of Appeal representing the Appellant in the case of Boateng [2016] EWCA Crim 57.

I wasn’t his lawyer in the Crown Court (where he had pleaded guilty) but took the case on to go to the Court of Appeal – you can read above some of the arguments that there were.

One of the conclusion was this – where someone is applying for a Residence Permit as a family member of an EEA national, they are not applying for ‘leave to enter’ the UK. The significance of this is that my client in that case was accused of trying to get a Residence Permit by deception. In that case it was as a family member of someone pretending to be an EEA national, but this could equally apply to someone who is accused of entering a sham marriage with an EEA Citizen.

He was charged with an offence contrary to s24A(1)(a) Immigration Act 1971 – Obtaining Leave to Enter or Remain by Deception and he pleaded guilty. But could he be, in law, guilty of this offence.

The Court of Appeal agreed that the framework of immigration law relating to ‘leave to enter (or remain)’ is very different to the system of immigration control for those who are either EEA nationals or family members of EAA nationals.

What about the fact that he pleaded guilty? It doesn’t matter. Even if the offence could be indicted under s24A(1)(b) (and if the CPS tried to, there would have to be more legal argument) the charge “cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”. The counts were “fundamentally flawed”“.

And so, even though there was a guilty plea, the appeal succeeded and those convictions quashed.

I assumed that this was a one off – a piece of bad drafting that just arose in this case. But recently I was talking to a colleague who was off to do a trial where someone accused of a sham marriage where this was the charge. It seems that there may be plenty of other people in the same position.

So, if you have been charged with this and have a trial coming up, you need to be aware of this case. If you’ve been convicted of a s24A offence when the allegation was you were trying to get a right under EEA law, you want to look at whether you can appeal the conviction, even if you pleaded guilty.

One often asked question is “Do I need a lawyer” and, if so, “when“?

To be honest, if you’re asking the question, then the answer to the first question is almost certainly ‘yes‘, and ‘yesterday‘ to the second.

Although on the TV a lawyer can pick up a case in the morning and go straight off to do a trial, in practice this is no longer possible (it doesn’t stop people trying unfortunately). Apart from the simplest of cases, there will be disclosure to be obtained from the the CPS, witnesses to be spoken to, and investigations to be undertaken. If you speak to a lawyer the day before your trial, then sure they will do their best. And sometimes their best will be enough to win, but not always.

You should also make sure that you give yourself enough time to choose a lawyer. Researching online, you’ll be able to find many reputable lawyers like Kenneth S. Nugent, P.C. Do not forget to make sure they have enough experience and are currently practicing the particular branch of law that you require. If you don’t then from the first call they’ll be able to let you know that they will not be able to assist you. You could save yourself some time by identifying this yourself.

To give yourself the best chance to win, get in early. Not only will this give enough time to prepare the case to put yourself in the best possible position to win, it will actually probably be cheaper. That sounds counter-intuitive, but if there’s an urgency then diaries will need to be rearranged, etc, etc, and it is likely that you will be charged more.

The worst thing that can happen is you’re told it’s too early – come back in a month, or when you’re charged by the police, or something like that. You probably won’t have to pay for that either.

Introduction

One of the most common questions I get is “can I appeal against my conviction”?

This is an overview of the process, and a couple of pointers.  As always, this is for general information and is not, and should not be taken as, legal advice.

How do I appeal?

I have written an overview of the procedure here. It’s important to remember that you cannot just ‘appeal’ – you need to have some reason, something that went wrong in the case that you can point to that would have made a difference.

If you have had a trial in the Crown Court and been found guilty (of some or all of the charges) then the advocate who did your trial should give you a formal (written) advice on appeal. This is presumably negative, or you wouldn’t be here.

Even if they have told you after the hearing that there are no grounds of appeal, you are still entitled to ask for a written advice. If you haven’t had one, then ask for it.

You have 28 days to lodge grounds of appeal against conviction from the time that you are found guilty. If you are within that time period then you have to act very quickly.

If that time has passed then you should still be as quick as you can, but you will have to give reasons as to why you were late with the application.

How could you help me?
In reality, you will probably need transcripts of parts of the trial, or at least the summing up. It may be that I can give you an initial view on less than that (possibly just from the papers), but this would probably be a provisional one.

Be aware that it is very difficult to appeal a conviction. Anyone that tells you otherwise should be approached with caution. Sadly there are plenty of people out there who will happily give false hope, at a price of course.

If I think that there are grounds of appeal, then I will draft them for you to ‘lodge’. Please note that I can only draft grounds if I think that they are sufficiently arguable. That means that I think that there is something that went wrong that would lead the Court of Appeal to allow an appeal. In any event, it is not fair on you to get your hopes up with grounds that are going nowhere.

If the Single Judge gives permission to appeal, then s/he will also grant legal aid. From then on, the case will proceed as an ‘ordinary’ appeal against conviction and I normally would carry on representing you under the legal aid order.

If the Single Judge says no, then you can renew the application. At that point we would have to discuss what to do. Again though, you have only a limited amount of time – 14 days – to lodge a renewal application.

Can I get legal aid?

Possibly. It’s a complicated area. It will depend on your financial position (and your spouse’s, even if you are in prison), when you have had advice from another solicitor, and how strong your case would appear to be.

If you want to investigate the availability of legal aid, then it’s probably best to contact me to discuss it, or approach a solicitor with a legal aid contract (it will be an application on a CDS/1 & 2. You can find some details about means testing here.

You can use a barrister on public access even if you are, or may be, eligible for legal aid. But that is only if you make an informed choice to do so.

Is there any risk in appealing my conviction?

The Court of Appeal have got a lot ‘tougher’ on what they consider to be unmeritorious applications, and are much more inclined to use their powers to stop this. For someone in prison, they can order a ‘loss of time’ – a direction that some of the time spent inside before the appeal doesn’t count.

There is also the power to make you pay towards the costs of the appeal. It’s important to remember this – there is always a risk in trying to appeal.

Is this the same if I want to appeal my sentence?

In essence, yes.

The test for an appeal against sentence is that there is an error of law, or the sentence is ‘manifestly excessive’. Although it is not enough that the sentence is a bit harsh, in practice this is a bit more flexible than the test for an appeal against conviction.

What about appealing a magistrates’ court conviction?

Different considerations apply, but here is an overview of how the process works.

Whether it is an appeal against the conviction, the sentence, or both,  it is a re-hearing of the original case. This means that you don’t have to have specific ground – reasons as to why you shouldn’t have been found guilty.

How do I know if my case is suitable for public access?

The best way is to ask, and give me a quick summary of the problem you have.

I will happily look at that for free, and give you an initial (free and no-obligation) view as to whether the case is one where we can work together.

It will be helpful if you could give a brief overview of your case. I’ve put down two examples here  –

Case Study I – Crime

“I want to appeal my sentence. I received 8 years imprisonment on 1st February 2015 for possession with intent to supply“.

This is not really enough information. It would be helpful if you were to include such information as : what was the drug? was this a trial, or did you plead guilty? If a guilty plea, when was this? What did the Judge say? Did you have solicitors? What did they say about an appeal.

And, most importantly, why do you think that the sentence is wrong?

Case Study II – Immigration

“I am in the UK on a Tier 2 General Visa and want to leave my job, but stay in the UK. What are my options?”

Again, it would be helpful if you could give some more information such as : what country are you from? Which Tier 2 visa are you on? When did you come to the UK? What job do you have? What industry do you work in?

What information would you want for a public access case?

As much as possible!

I appreciate that it is hard sometimes to know exactly what is and isn’t relevant. The general rule is that the more information I have the better.

What I would probably do is send you a list of further questions and documents that I would like to see.

Using the two examples above –

Case Study I – Crime

After agreeing that we work together, it would be helpful to have as many documents as possible. In a case like this, I would expect that you would have a file from your previous solicitor that I could look at.

Case Study II – Immigration

In a case such as this, there probably won’t be much documentation. I would have asked you a list of questions, and it may be that we would speak on the phone or arrange to meet.

 Do we meet up, or do it all by phone/email/letter?

It depends on the issue. A trial will often require a face to face meeting. Other cases can be dealt with just as well on by phone or even email.

Both of the ‘Case Studies’ above are good examples of cases where there would no need to meet.

Of course, if you do want to meet up, then we can arrange that.

There’s more details here – Can I appeal my criminal conviction?

When is the best time to get you involved?

As early as possible. Worse case scenario is that it’s too early – in which case I will tell you that, nothing lost.

However, nothing is worse than leaving it too late. As an example from Case Study I above, there are often deadlines that have to be met. The more time we have to work on the case the better.

As an example, much better to get advice before putting in grounds of appeal, than wait until your grounds have been refused.

 How much does it cost?

It’s impossible to give an exact figure in advance. It will depend on what the sort of case is, how much work is needed, if it is a Court hearing then where it is, lots of things like that.

After the initial enquiry I will be able to give you a quote. Normally this will be a fixed amount for each part of the case, as this gives you certainty and all the information that you need.

Can’t you just give me a quick bit of legal advice without all the hassle/paperwork etc?

Unfortunately not.

I know that it can seem frustrating, especially when it is something that seems simple and can be responded to in 5 minutes in an email. Unfortunately, the regulatory position is that I cannot give any legal advice without being ‘instructed’ by a solicitor or going through the process of agreeing terms (you can see the standard letters on which any agreement would be based on the Bar Standards Board website). This is the case whether or not the advice is being given for free.

There is an overview of (some of) the rules on the Bar Council website.

Do I need a lawyer? Do I need one now?

This is such an important question, it gets its own page.

Are you a ‘top lawyer’?

It seems every lawyer on the internet is described as a ‘top lawyer’. I don’t think it’s a particularly helpful term, as there is no way of telling what it actually means. Although I have been described by others as a ‘top criminal barrister’, this may be tongue in (legal) cheek after I had criticised some of the media for using that term too much.

I’m wary when people describe themselves as a ‘top’ lawyer, or even the ‘best’ lawyer. I believe that my record speaks for itself. But it’s also true that someone who may be the best for one case, it not for another. And someone who interacts really well with one client, may not work well with another.  Ask questions and do your research until you find a lawyer you’re comfortable with and you have confidence in.

How much do you charge?

It’s not possible to give a ‘one size fits all’ charge, it all depends on the circumstances. I appreciate that that may be frustrating, but until I know roughly what the case is about, it’s not possible to give a specific figure.

Dan will always offer a fixed fee so that you have certainty.

This is a test – seeing how it works

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