What price defence? And the accidental tariff.

17 August, 2018

HOME PAGE | Column from Criminal Court

Issue one

In the first court I went into one day in June or July this year no-one was sitting in the defence seat. Counsel were in other seats. The judge mentioned industrial action by the bar. What now, I thought? If by law the police cannot take industrial action why should that be possible for defence Counsel? Concluding that reporting events in the absence of the defence might be beyond my competence I went in search of a court in which the defence seat was occupied.

I found Judge Hatton's Court and the trial of Mr Ebrahimi - reported elsewhere in this issue of Science, People & Politics and posted before that on the website www.gavaghancommunications.com. The highly experienced QC, Mr Enoch, was prosecuting and I decided to stay, even though the defence seat was again vacant. I am far from an apologist for those guilty of crime, but do not like the idea at all of dispensing with the defence. Many in our courts are not guilty as charged (which is not the same as innocent), or not guilty at all. There is a difference.

In this case Mr Ebrahimi was defending himself, but why he was defending himself I do not know. I prowled the court building asking random counsel if there might be a reason why someone such as Mr Ebrahimi would be denied legal aid --- which I am not certain was the case -- but gained little insight.

Impressively Mr Ebrahimi spoke clearly from the dock in his closing speech to the jury, not once falling foul of the judge by trespassing onto material he (Mr Ebrahimi) might not by law explore at that stage of the trial.

Despite Mr Ebrahimi's impressive feat of memory and discrimination I was discomforted. He had faced profoundly serious charges before being found guilty by the jury.

It is not wishy washy liberalism to think that the public needed a barrister of equivalent competence to Mr Enoch in the defence seat. Does not the absence of the defence hamper the prosecution, or even the safety of the State, which is best served by ensuring law takes precedence over fear, prejudice and emotion?

I do not know whether Mr Ebrahimi simply chose to defend himself, but would Mr Ebrahimi's human rights have been infringed - if he had made such a choice - if the court had insisted on appointing a QC the match for Mr Enoch QC?

Issue two: The accidental tariff.

Again I must assert I am not an apologist for crime. But nor do I like to see the State acting as a bully, especially when that is and was probably not the State's intent. Today - I am not convinced names in this case need to be in the public domain - in Crown Court, a man whose immigration status was on hold because he had become involved in an insurance fraud (lesser harm sentencing category) was given a short suspended sentence and a tariff of unpaid work. This is a man who, because of his uncertain immigration status had not, while the criminal case was pending, been able either to work or study. It took four years for this man's case to reach today's sentencing judge. The judge asked why the four-year delay, but no-one gave a full explanation in open court. This man, whose guilt was not in dispute, had already lived for four years without the means to earn money or occupy himself by formal study. Though this man was with his family he had, as far as I could see, already been punished by the State in a manner which in his case was disproportionate to his offence. That is an invidious position for the State to place a Crown Court judge in. The case was what is called a "crash and cash" case, in which an accident is manufactured to enable a false insurance claim. The charges were couched in terms of conspiracy, and the guilty defendant whose immigration status had been in suspense for four years, was not the instigating nor main protagonist. Who will investigate and make sure no such accidental and informal four-year tariffs -- which make someone of uncertain immigration status profoundly vulnerable -- are routinely assigned to defendants before they reach a sentencing judge?

This column will be moved to the delayed issue 3 (correction issue 3 (Jul-Sept), 2018 of the "From British Courts" section of Science, People & Politics.

Helen Gavaghan.