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If you have an issue you want to promote or a nagging complaint, maybe an idea or just something you want to get off your chest please feel free to email us with any blog or article or comment you want to appear here. The thoughts and ideas of police station reps are interesting and valuable. If you would like to post an article or respond to one that is already here please email.
• Balls to Boris
• Better Be Boris by Mat Fresco
• The Big Wedding - GDPR & Criminal Firms by Mat Fresco
• Inappropriate Adults by Dan McCurry
• The Tyranny of Tone by Dan McCurry
• No Comment Parliamentary Review by Matthew Fresco
 
 
 
  
  
  
 
BALLS TO BORIS
Full Written Judgement

29th May 2019
 
Boris Campaign ImageBoris faces a private prosecution for Misconduct in a Public Office. The offence carries a maximum sentence of life imprisonment. Here is the full written reason for allowing the case to proceed.
Full Judgement
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IN WESTMINSTER MAGISTRATES' COURT

MARCUS BALL
APPLICANT

V

ALEXANDER BORIS de PFEFFEL JOHNSON
PROPOSED DEFENDANT

DECISION AND REASONS OF DISTRICT JUDGE M. COLEMAN

THE APPLICATION

1. The court is dealing with an application, dated 20th February 2019 and received by this court on the 25th February 2019, for a summons against the proposed defendant, Alexander Boris de Pfeffel Johnson, for three offences alleging misconduct in a public office.

2. Although there is no obligation on the court to give written reasons why an application for a summons is granted or refused (R v Worthing Justices, ex parte Norvell [1981]1 WLR 413) this is an unusual and exceptional application with a considerable public interest and it is right that full reasons are provided to the unsuccessful party.

3. The information makes the followings allegations:

“The proposed defendant was a holder of 2 public offices. He was a Member of Parliament and also the Mayor of London. The prosecution focuses on 2 timeframes. The first is the period between 21 February 2016- 23 June 2016, with the earlier date reflecting the date when Mr Johnson announced his decision to vote to leave the European Union (EU) and the later date being that of the EU referendum.


The second period is between 18 April 2017- 3 May 2017 which reflects the period commencing upon the date when the 2017 general election was announced until the date when Parliament was dissolved.

The proposed defendant was at all material times a member of Parliament. Further, during the first period, he was until 8 May 2016 the Mayor of London.

During both time periods outlined above, the (proposed) defendant repeatedly lied and misled the British public as to the cost of EU membership, expressly stating, endorsing or inferring that the cost of EU membership was £350 million per week. Whilst doing so he was acting as a public officer and using the platforms and opportunities offered to him by virtue of his public office. Further the defendant knew that such comments were false or misleading in that he had on other occasions used accurate figures and showed a clear understanding of how to quantify UK spending in respect of the EU. Lying on a national and international platform undermines public confidence in politics, undermines the integrity of public referendums and brings both public offices held by the (proposed) defendant into disrepute.

The law dictates that misconduct to such a degree requires a criminal sanction. There is no justification or excuse for such misconduct. To that end Mr Johnson was written to by the prosecution (applicant) on 16th November 2018 and invited him to provide an explanation and grounds for his belief in the accuracy and truth of the comments made. The prosecution (applicant) expressly informed the proposed defendant that it could provide any such exculpatory material to the court at this stage. Whilst the proposed defendant was not obliged to, he has tendered no such explanation or material.”

PROCEDURAL HISTORY

4. The application was given to me to consider on the 8th March. On the 15th March the proposed defendant was written to inviting him to make written representations about the application.

5. The proposed defendant instructed solicitors. An exchange of correspondence led to my holding a closed hearing on the 14th May 2019 dealing with disclosure of the documents referred to in the information and an earlier legal opinion given to the applicant. A public hearing took place on the 23rd May 2019 at which the proposed defendant’s lawyers could make oral representations as to why a summons should not be granted. I had fully considered Criminal Procedure Rule 7.12 which directs that the court may determine an application to issue a summons without a hearing, or at a hearing (which must be in private unless the court otherwise directs.)

6. As stated above, as this is an unusual and exceptional application with a considerable public interest, and because there was already a great deal of publicity in the public domain about the application being made, I believed that the principles of open justice required that the application be in open court.

7. This is my reserved decision from the hearing on the 23rd May.

8. Before the hearing I was provided with a significant quantity of papers in an agreed bundle. Following court directions both sides provided their written representations to me in advance of the hearing. Each party had the opportunity to develop their submissions at the public hearing.

9. Mr Lewis Power QC represented the applicant. Mr. Adrian Darbishire QC represented
Mr. Johnson.

10. I am extremely grateful to each of them for their thorough and clear written representations.

THE OPEN HEARING

11. At the outset of the open hearing I was asked by Mr. Darbishire QC to consider reporting restrictions. Having considered CPR 6 I ruled that restrictions were not required in this case.

12. The concern at a preliminary hearing is that the proposed evidence would be in the public domain and could potentially compromise the integrity of any future trial. In this case the main evidence, (what Mr Johnson’s alleged misconduct is said to be) which was likely to be placed before a jury, is already in the public domain and no reference at this hearing was to be made about the supporting evidence referred to in the application. That evidence would be made available in due course in the usual way. The hearing was to consist of submissions on points of law.

13. In the interests of open justice, no reporting restrictions were imposed.

14. The granting of the summons is opposed by the proposed defendant. His position, as set out below, is lifted from the defence submissions and reproduced with the kind permission of the defence team:

15. “MR JOHNSON'S POSITION IN SUMMARY:

As Lord Widgery CJ succinctly observed in Klahn1, when faced with an application of this sort: “The magistrate must be able to satisfy himself that it is a proper case in which to issue a summons.”

This application is brought for political purposes. The position presented to the Court is that this is a disinterested attempt to improve the standards of political debate. The reality of this enterprise is different. The ‘Prosecutor’ (a limited company) is ‘Brexit Justice Limited’. Brexit Justice Limited is the product of a campaign to undermine the result of the Brexit referendum, and/or to prevent its consequences. The company and this application owe their existence to the desire on the part of individuals such as Mr Ball to undermine the referendum result. The 'Brexit justice' which is ultimately sought is no Brexit.

The application is a (political) stunt. Its true purpose is not that it should succeed, but that it should be made at all. And made with as much public fanfare as the prosecution can engender. While all questions of law are of course for the Court, it is relevant to note that, in taking this course, the Applicant disregarded distinguished advice against prosecution, preferring to impugn the competence and integrity of the source of that advice. The Applicant insists that the intention is that the case should proceed to a trial, yet it is in no position for that to happen. These are relevant facts for the Court to consider, when addressing the necessarily broad question which must be answered, is the Court satisfied that this is a proper case for the issuing of a summons?

Consistent with it bearing a political motive, the application does not disclose an evidential and legal case for the issuing of a summons. The application represents an attempt, for the first time in English legal history, to employ the criminal law to regulate the content and quality of political debate. That is self-evidently not the function of the criminal law. Specifically, a complaint about the way in which a political campaigner has deployed publicly-available statistics in the services of a political debate is not a proper basis for the criminal offence of misconduct in public office.

R v West London Metropolitan Stipendiary Magistrate, ex parte Klahn [1979] WLR 933, at 936E

In any event, the alleged facts here do not come close to establishing the kind of misconduct with which the offence is concerned. The misconduct offence depends upon proof of the serious abuse of the powers of the office (or a grave failure to exercise them at all). The nature of the alleged misconduct and the context of it are far from the scope of this offence. The essence of the offence is of abuse of the public office, not poor conduct by a public official. It follows that, even if there were evidence of conduct which reflects on the fitness of the office holder or even shows him to be unfit to hold the office, that is nothing to the point unless it amounts in itself to an abuse of the powers or duties of the office itself.”

16. MATTERS TO BE CONSIDERED BY THE COURT IN RELATION TO THE GRANTING OF A SUMMONS

17. BASIC PRINCIPLES

• The discretion to issue a summons is not unfettered or unlimited. The general principle is that a summons ought to be issued pursuant to a properly laid information unless there are compelling reasons not to do so, most obviously if an abuse of process or impropriety is involved, or whether it would be vexatious to issue a summons, in other words whether there is the presence of an improper ulterior purpose and/or long delay. The consequences may be significant but the threshold to grant a summons is low.

• There is no obligation or requirement for a person seeking the issue of a summons to approach the police first, though this may be a relevant circumstance in any particular case.

• The court at this stage is not making any findings of fact and is not adopting the role of a court of trial.

18. The factors to be considered by the court were set out by Lord Widgery CJ in R v West London JJs ex parte Klahn (sic) It would appear that the magistrate should at the very least ascertain:

a) the allegation is of an offence known to law, and if so, that the essential ingredients of the offence are prima facie present

b) the offence alleged is not out of time

c) the court has jurisdiction

d) the informant has the necessary authority to prosecute

e) the court may and indeed should consider whether the allegation is vexatious

f) since the matter is properly within the magistrate’s discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given stop plainly he should consider the whole of the relevant circumstances.

19. The court is also entitled to consider at this stage if it would be an abuse of the process of the court to issue proceedings. That issue however can also be raised by defendants at a later stage. (D v A [2017] EWCA Cri 1172)

20. Dealing with these matters in turn:

21. IS MISCONDUCT IN A PUBLIC OFFICE AN OFFENCE KNOWN TO LAW? Yes, it is, and it is contrary to common law.

22. ARE THE INGREDIENTS OF THE OFFENCE PRIMA FACIE PRESENT?

23. The elements of misconduct in a public office were set out in Attorney General’s Reference (Number 3 of 2003) [2004] EWCA Crim 868 :

1. a public officer acting as such.

2. wilfully neglects to perform his duty/or wilfully misconducts himself.

3. to such a degree as to amount to an abuse of the public’s trust in the officeholder.

4. does so without reasonable excuse or justification.

24. PUBLIC OFFICER

25. The defence accepts that the proposed defendant was a Member of Parliament and Mayor of London at the relevant times. What constitutes “public officer” was considered by Sir Brian Leveson PQD in R v Mitchell [2014] EWCA Crim 318. He said, at paragraph 16,

“in our judgement, the proper approach is to analyse the position of a particular employee or officer by
asking 3 questions:

• What is the position held?

• What is the nature of the duties undertaken by the employee or officer in that position?

• Does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of that duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty?

If the answer to the last question is “yes” the relevant employee or officer is acting as a public officer: if “no”, he or she is not acting as a public officer

26. I accept the assertion made by the applicant that there can be no doubt that a Member of Parliament is indeed a public officer. I equally accept that being Mayor of London is also a public office.

27. ACTING AS SUCH

28. Mr Power QC asks me to consider the Attorney General’s Reference (Number 3 of 2003) [2004] EWCA Crim 868, mentioned above, in which the Attorney General sought the opinion of the High Court about the ingredients of the common law offence of misconduct in a public office. The court said “Roderick Evans J rightly acknowledged the “great variety of circumstances” in which the offence of misconduct in a public office may be charged. It is clear from the authorities that the defendant must be a public officer acting as such. In the absence of submissions on those ingredients, which may in some circumstances present problems of definition, we do not propose to elaborate on them.

29. Mr Power has referred me to the Law Commission’s paper on Misconduct in a Public Office, dated 20 January 2016. The commissioners observe in respect to “acting as such” that it appears to be sufficient that there is an improper use of the opportunity afforded by a public office. All that this element serves to exclude is an act performed by the officer in a private capacity to which his or her position is simply irrelevant (paragraph 2.119) Relying on a Law Commission paper may not be the applicant’s strongest point.

30. The applicant’s position is that in respect of counts 1 and 2, which allege misconduct between 21 February 2016- 23 June 2016 whilst a Member of Parliament (count one) and whilst Mayor of London (count 2 ) the proposed defendant, as a highly prominent supporter of the campaign to leave the European Union, used his status and his high profile, to lead the “Vote Leave” campaign for the 2016 referendum.

31. As Mayor of London the proposed defendant signed off several letters in that capacity when expressing his views on Brexit. The proposed defendant’s chief of staff, Mr Ed Lister, informed the mayor’s staff that it was “official mayoral policy” to support the case for the leaving the EU. A policy being deemed official, and therefore of the office, would make any campaigning thereafter by the proposed defendant official and pursuant to his office.

32. Mr. Darbishire QC puts forward the following argument, reproduced with his consent from his skeleton argument:

“For present purposes, it is accepted that a Member of Parliament and/or the Mayor of London are “public officials”, parts of the duties associated with those roles forming, as the test was put in Cosford2 (per headnote), “the fulfilment of one of the responsibilities of government.”

As will be seen below, that of course does not mean that everything done by such a person will itself form part of the responsibilities of government, or the discharge of that office. Electoral or referendum campaigning is not the ‘fulfilment of one of the responsibilities of government’.

The Committee on Standards in Public Life (“CSPL”) observed as long ago as 1998 that the government does not participate in general election or referendum campaigns. While the conduct of an election (returning officers, election officials, provision of polling stations etc.) is undoubtedly the fulfilment of one of the responsibilities of government, the actual conduct of campaigning is not.

The offence is concerned with the manner in which the specific powers or duties of the public office are discharged. This element is in part reflected in the requirement that, at the time of the misconduct alleged, the individual must be acting as a public official. This element is obviously closely connected with the requirement that the evidence must show a breach of the duty of the office, which is addressed below. We recognise that the arguments overlap to a significant extent, although the result is the same however the elements are approached.

Here, the misconduct alleged concerns Mr Johnson’s adoption and repetition of the Vote Leave campaign message concerning the £350m per week. No allegation is made, nor could any be made, that Mr Johnson adopted or commended that figure for any purpose other than in the course of a contested political campaign. The claim was based upon information that was, at all times, freely available to all. As with very many claims made in political campaigns, it was challenged, contradicted and criticised, and many examples of this process are furnished in the material supplied by the Applicant.

In drawing upon freely-available public statistics for the purpose of a political argument, Vote Leave, and those who supported and spoke for that campaign, were clearly not acting as public officials, nor exercising any public power. They made no claim to special knowledge of the sums expended by the UK, they exercised no official powers in promoting that message and the provision of figures about UK spending formed no part of Mr Johnson’s official duties.

There is no example where a public official has been taken to be ‘acting as such’ in remotely comparable circumstances. The Applicant has, with respect, overlooked for the purposes of their argument the substance of the misconduct cases. Certainly, there are examples of relevant breaches of duty where the public official abused the power given to him by virtue of his office, albeit that the misconduct fell outside the scope of his authority (see below). In all of these cases, the individuals concerned were exploiting the official powers of the office for corrupt private advantage. That is the gist of the misconduct offence.

The allegation made here is of a wholly different kind. The claim is that, on the campaign trail, Vote Leave (and Mr Johnson specifically) twisted or mis-represented public statistics to make a political point. Such conduct, if proved, lacks entirely the necessary relationship with the actual duties and powers of the public offices concerned.

The kernel of the offence is that an officer, having been entrusted with powers and duties for public benefit, has in some way abused them, or has abused his official position.'

The alleged conduct here is the misuse of statistics in the course of non-party, national debate, in order to burnish a very public political argument, participation in which is not a duty of any official position nor the exercise of any official power. The situation here shares none of the features of the “various circumstances in which the offence has been applied” and does not begin to 'bear the indicium' of the harm which the offence is designed to address. As noted, the offence is not concerned with poor behaviour by public officials, but with the abuse of official power: the proper territory of the offence is serious misconduct in the discharge of a public office and not poor conduct by someone who is a public official (even when that takes place in public).

The misconduct alleged here could not sensibly be characterised as being 'incompatible with the proper discharge of the responsibilities of his public offices'; it has, in truth, nothing to do with the discharge of those offices. And that link is essential; the conduct must be incompatible. In other words, it must be logically or practically impossible for the individual to engage in the misconduct alleged, whilst simultaneously exercising the specific powers and discharging the duties of his/her office in a proper way.'

33. I have considered Mr. Darbishire’s skilfully argued submissions but at this stage I am considering only whether there is prima facie evidence, which will be made available before trial, of the necessary ingredients of this aspect of the offence. I consider that the defence arguments set out above are trial issues to be determined following service of all the evidence. That stage has not yet been reached.

34. WILFULLY NEGLECTS TO PERFORM HIS DUTY/OR WILFULLY MISCONDUCTS HIMSELF

35. This element of the offence has been found to describe circumstances in which a public officer does not conduct himself properly; act in accordance with the requirements of his position; or does not act within the limits of his authority.

36. In its paper the Law Commission recently expressed the view that this may include a member of Parliament who fails to comply with the standards of honesty and integrity required by the code of conduct for Members of Parliament. “Wilful” is deliberate. Negligent is now understood to be satisfied by “recklessness” as identified by the Supreme Court in R v G [2004] 1AC 1034.

37. The prosecution at this stage needs to show there is prima facie evidence that the proposed defendant was aware of the factual circumstances which make his position a public office; that his conduct risks breaching one of the duties of the position; and that he deliberately engaged in the conduct which breaches the relevant duty. The applicant’s case is that there is ample evidence that the proposed defendant was aware that being a member of Parliament and Mayor of London are public offices. It is wholly inconsistent with either office to lie to the public or to misuse statistics. To do so would be contrary to the oath of Mayor and contrary to the Nolan principles and code of conduct as applied to Members of Parliament. The applicant argues there is little doubt given the frequency of the occurrence that the proposed defendant intended to align himself to the inaccurate and misleading figures of £350M per week being sent to the EU.

38. The applicant’s case is there is ample evidence that the proposed defendant knew that the statements were false. One example is given that in a televised interview in May 2016 the proposed defendant stated, “we send the EU £10 billion per year” and that therefore he knew that the £350 million per week figure (£20 billion per year) was incorrect. A further example is given at paragraph 37 of Mr. Power’s note which accompanied the application.

“It is further served that the UK statistics authority described the figure as misleading. The Institute for Fiscal Studies described the same as plain “absurd” Further, the UK Statistics Authority has said that the EU membership figure of £19 billion a year or £350 million per week is “not an amount of money that the UK pays to the EU each year.” Moreover, the Authority Chair has described the use of the figure by Mr Johnson as “a clear misuse of official statistics” The Chair, Sir David Norgrove, observed further directly to Mr Johnson that:

“I am surprised and disappointed that you have chosen to repeat the figure of £350 million per week in connection with the amount that might be available extra public spending when we leave the European Union”

39. The defence case rejects that there is prima facie evidence of this ingredient of the offence.

40. Mr. Darbishire says there must be a link between the conduct and the powers of the office. There is clearly an overlap with the argument about “acting as such” He argues that what his client is accused of is not about the discharge of his powers either as a Member of Parliament or as Mayor of London. He says there needs to be evidence of corruption or an abuse of power to do with the discharge of the office.

41. The defence argue that the offices held by the proposed defendant provide status but that does not translate into power. Statements and speeches made on the hustings are not an exercise of the power of the State. Mr Darbishire’s representations, lifted from his skeleton, summarise his conclusion on this point:

“It is submitted that the facts alleged by the Applicant do not come close to establishing a qualifying breach of duty. None of the acts complained of took place in the course of Mr Johnson's direct parliamentary or mayoral duties, but in the course of political campaigning. In no case is there the slightest connection between the statistic in issue and Mr Johnson's public duties, and at no point is it alleged that he had, or claimed to have, any special knowledge or authority in relation to them. There is no trace in the allegation of the abuse of the powers of the office, of corruption or of any dishonest motive. The motive alleged is that, like all those involved in any form of political debate, Mr Johnson sought to present the publicly available facts in a manner which supported the position he wished to advance.

The Applicant complains that in doing so, Mr Johnson 'failed to check the accuracy of that which he chose to advance', or that he presented the statistics in a manner which, by reason of the use of a gross figure when a net figure was called for, was misleading and wrong. These are common complaints, the kinds of complaints which are the proper substance of political debate, public contradiction and the judgment of the electorate, all of which ensued in this instance.

If there were some genuine element of impropriety, the conduct would presumably merit investigation by the bodies charged with the maintenance of the standards of the office holder, here the Greater London Authority and the Parliamentary Commissioner for Standards. The latter of course is responsible for ensuring compliance with the very Code of Conduct upon which the Applicant now relies. The Applicant has made no such complaints.”

42. I do not accept those submissions for the purpose of considering whether there is prima facie evidence of this aspect of the offence. I accept that the public offices held by Mr. Johnson provide status but with that status comes influence and authority.

43. I am satisfied there is sufficient to establish prima facie evidence of an issue to be determined at trial of this aspect. I consider the arguments put forward on behalf of the proposed defendant to be trial issues.

44. TO SUCH A DEGREE AS TO AMOUNT TO AN ABUSE OF THE PUBLIC’S TRUST IN THE OFFICE HOLDER

45. I can take this very shortly. Conduct is required which breaches a high threshold; conduct which is so serious that it deserves criminal sanction, not merely civil or regulatory. High culpability and significant harm need to be established.

46. It is alleged that the conduct of which the proposed defendant is accused was a huge lie calculated to mislead the electorate by using inaccurate and misleading statements.

47. The statements were repeated on numerous occasions.

48. Mr Derbyshire argues that the allegations here do not begin to approach the very high threshold level of the common law offence. He submits that the applicant has bolstered his argument by relying upon the suggestion that the likely consequences here satisfy the requirement.

49. The applicant has statements from members of the public which addresses the impact the apparent lie had on them. Mr Power submits there will be seldom a more serious misconduct allegation against a Member of Parliament or Mayor than to lie repeatedly to the voting public on a national and international platform, in order to win your desired outcome.

50. I am satisfied this element of the offence is prima facie satisfied.

WITHOUT REASONABLE CAUSE OR JUSTIFICATION

51. I can take this equally shortly.

52. I have to be satisfied that there is prima facie evidence that the conduct complained of is not readily explainable. As Mr Power puts it “can the proposed defendant defend the comment, and if so, could the prosecution prove beyond doubt that the “defence advanced” was unreasonable and/or without justification.”

53. I am told there is evidence that in a television interview in May 2016 the proposed defendant stated: “we send the EU £10 billion a year.” The applicant relies on this comment as prima facie evidence that the proposed defendant knew that the £350 million per week figure (£20 billion per year) was incorrect.

54. They will also rely on other evidence, including evidence provided by the Institute for Fiscal Studies and the UK Statistics Authority. The applicant submits that the proposed defendant must have known from the outset that the comments complained of without clarification as a standalone comment were inaccurate, untrue or the very least misleading.

55. I am satisfied there is prima facie evidence of an issue to be determined at trial in relation to this aspect of the offence.

IS THE PROSECUTION VEXATIOUS

56. I accept the defence submission that when the applicant commenced his consideration of whether to bring a private prosecution against the proposed defendant, some three years ago, there may have been a political purpose to these proceedings. However, the information for the summons was laid on the 28th February 2019 and that argument in my view is no longer pertinent.

57. I do not accept the application is vexatious.

DECISION

I repeat what is stated above. The allegations which have been made are unproven accusations and I do not make any findings of fact. Having considered all the relevant factors I am satisfied that this is a proper case to issue the summons as requested for the three offences as drafted. The charges are indictable only. This means the proposed defendant will be required to attend this court for a preliminary hearing, and the case will then be sent to the Crown Court for trial. The charges can only be dealt with in the Crown Court.
 
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BUS IT LIKE BORIS
Disbs & Mileage Claims: a Warning

by Mat Fresco

22nd May 2018
 
Matthew Fresco of No Comment says the LAA are clamping down on exagerated mileage claims. Its best to bus it like Boris (don't worry its a simple acronym to help you get it right)
Boris Campaign ImageThe LAA are aggressively attacking travel claims. Don't over-claim expenses. The MPs expenses scandal pretty much destroyed the reputation of our politicians and many were forced to repay spurious claims. Some were even prosecuted. No Comment has launched the Boris campaign because we do not want any rep to be hauled over the coals for overclaiming disbursements. Boris is our simple guide which helps reps to never be a Boris.

Many, if not all criminal firms have had claw backs on travel costs, even for really small sums. Do not overclaim your mileage and disbs! We are worried that police station reps are being targeted and are at risk of being struck off or even prosecuted.
Don't be a Boris!
Bus It: The presumption is that you will charge the public transport cost for a short journey of less than 45 minutes. Explain your travel costs on the report. Provide receipts.
 
Outside Office Hours: You can claim up to 45p for mileage. But remember we all have mapping tools. Your postcode and the firms postcode are not secret. Keep it realistic. Large claims are asking to be audited.
 
Receipts: Evidence is now essential. You should always keep receipts. Provide an explanation on your report; even for disbs of under £20
 
Inside Office Hours: Mileage is the distance from the instructing solicitors office or the actual mileage, whichever is the shortest. Mileage is capped at 25p per mile. To claim 45p you will need to show a justification.
 
Share & Apportion: Do not double claim. If you have three clients in a day you must apportion the travel costs. For example in London the off-peak Oyster is capped at £10.70. Therefore each of those three clients would have disbs of £3.60 only. Do not charge £10.70 to all three.
 
Read More here on the Wiki or email us if you have queries
 
Dan McCurryMat Fresco is the founder of No Comment the largest police station agency in the country. He is a keen amateur web designer, programmer and photographer with boundless enthusiasm but a distinct lack of talent. Mat is a duty solicitor with years of advocacy experience but his passion is for defending clients prior to charge. He lives in a Hertfordshire with numerous rabbits, dogs and goldfish as well as four children.
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THE BIG WEDDING
GDPR & CRIMINAL FIRMS

by Mat Fresco

22nd May 2018
 
Matthew Fresco of No Comment suggests you should ignore all those GDPR checklists.
Do nothing.
There’s been quite a bit of talk about the Royal Wedding but that is nothing compared to the chatter about GDPR. Like speculation over Prince Harry’s girlfriends it's been an incessant background hum for a couple of years.

But its nearly here. It's been getting louder and louder. GDPR becomes law on 25th May and its unavoidable. It's everywhere.

For criminal law firms I think it's too early to panic. In fact its too early to do anything. In principle criminal firms will suffer fewer risks than most law firms. They need to do less. Like the Royal Wedding it can be largely avoided but not wholly ignored.

All law firms are data controllers so you have to do some work. You need to be compliant. It is unavoidable so bang out the fun stuff now (and by fun I mean tedious). It's a bit like listening attentively to a neighbour who is excited about the precise colour of Meghan’s dress. Grin and bear it.

Get it onto paper. Its not hard. We are solicitors and writing stuff down is what we do. Some of it is management speak but so you will need ‘an audit map for the data flow’. No, I have no idea either, but we will find something on Google and get a 12-year old to do a nice picture of it.

Mostly its straight forward. Documenting the personal data you hold, where it came from, who you share it with and what you do with it. The client gets nicked and we get papers. Its hardly difficult in a Criminal Firm. It's easy to get compliant.

But its scary. Its scary because the fines are massive. But don’t be fooled by all those shock, horror headlines.

Basically GDPR says that where a breach occurs due to unlawful processing by a processor, the controller is jointly and severally liable for the damage if it, too, was in some way responsible, no matter how minor its responsibility.

But, and it's a very important but for Criminal Firms, if the controller is completely fault-free it can avoid liability for a breach caused by its processor. It goes both ways, so a processor can be liable for breaches caused by its controller.

Will Meghan and Harry’s marriage last? Will they divorce? Is Angela Merkel related to Meghan Markel? We don’t know. We have to wait. So do nothing. Keep quiet and look enigmatic. Most importantly do not rush into any contracts with suppliers.

Unlike Harry and Meghan Criminal Firms are not exotic or glamorous. No one loves a Criminal Firm. Unlike princes and actresses they have very few relationships. Criminal Firms have only a few suppliers to share data with. It's easier to manage and way less risky.

In theory the CPS, courts and police are all data controllers while the barristers, experts and police station reps the firms instruct are all data Processors.

Under GDPR both the controller and the processor are liable if either cocks it up. That is not really a problem though. Clearly the Police will cock it up, and they will leak left right and centre. It's going to happen, and we all know it.

These new regulations and laws are a bit of a fudge. The UK has some opt-outs and lets not even get started on Brexit. Whilst the police and courts will be exempt to an extent under GDPR firms in theory could be liable for a Police boo-boo. It will not happen.

The maximum fines are vast but Criminal Solicitors understand more than most that maximum sentences are rarely imposed.

Police budgets are measured in the billions while Criminal Law firms are mostly spit and sawdust operations scratching out a living on Legal Aid pennies. So stop stressing. You are not gong to be fined 4% of your global turnover.

You do not have a global anything.

Just get compliant and you will side step any liability. The police will be fined when there is a cock-up. No-one is going to fine a criminal firm for a police force that buggers it all up.

That leaves the other three people a firm does business with: the bar, reps and experts. Since they do not determine how personal data is processed its always been assumed that barristers, experts and police station reps are data processors.

The Bar does not agree.

Data processors will inevitably have to sign contracts to protect client data and indemnify the firms. Yet briefs are not on board. They are signing diddley. The Bar Council recently told them not to saying, 'for the avoidance of doubt, self-employed barristers are data controllers of their client’s data. They are not data processors’. The reasoning is clear. They are not 'sub-contractors on the solicitor’s behalf, merely processing data accordingly’. The Bar is arguing they are providers of ‘independent objective specialist advice and advocacy’. They are controllers and not processors as its up to the barrister to determine what information to obtain and process for the task.

Barristers want you to indemnify them.

Regulating the flow of personal data between controllers and processors is a core aim of the GDPR so it matters. The Bar have a point. Who is right? We will all have to wait and see how that plays out. Criminal firms should not be demanding contracts just yet.

Once again criminal firms should do next to nothing. If barristers are data controllers then the reps are data controllers too. So wait and lets see.

Finally, there is a crude issue we have to get out into the open. Criminal firms are not like other law firms. Like Meghan’s family there is an embarrassing home truth: criminal firms are the trailer trash of law.

Criminal firms have clients. Those clients are criminals.

GDPR says that individuals can claim compensation for damage suffered. It can be material or non-material. Even emotional distress caused by unlawful processing could lead to a claim in a civil suit.

But it is unlikely that your regular shoplifting own client is going to be able to argue any damage at all. You have to go to a civil court with clean hands not light fingers.

Convictions are a matter of public record. The details of cases are public right down to the defendants address and date of birth. Convictions, cautions and not guilty verdicts are all public. Criminal Law is done in the open air. It's at the very core of justice. Very little is actually secret. Naturally criminal firms will have to protect some vulnerable clients and victims, but we already do that.

So stop worrying about GDPR. You are not Allie McBeal. Demand all the assurances you want. Demand compliance from everyone. Codify all the obligations you need. But do not get into negotiations about indemnity until we know who is meant to indemnify who.

Happily discuss indemnity of course. But my view is that it's too early to sign anything. We need to see what happens in the market.

GDPR is eerily quiet on the issue of indemnity and so should you be. Criminal firms need to be like the Queen, sage, wise and quiet. Above it all and waiting.

The marriage of an American actress to a British Prince is a clash of cultures. Despite the cheap gags I do hope it will be a loving long-lasting union. They can make it work by taking the best bits from both worlds. It is common to see indemnities in US contracts, but their use is far less common here.

My view at the moment is that they may be needed but not yet. It's better to agree with suppliers and partners that an indemnity is not necessary. Remember you are a lawyer. You are not an expert in Contract Law but you that course module: you don’t need an indemnity clause to recover damages. Thats what GDPR is there for. Get your suppliers confirm compliance first.

Its easy to get lost in GDPR so keep a copy of article 6.1 close at hand in case of panic. GDPR is there to stop annoying calls from double glazing companies. Article 6.1 says you should not panic. It says do nothing. There are 6 legitimate reasons to process data and you can tick all the boxes.

So the answer to most problems with GDPR is, we don’t know. But let's not worry. GDPR has not yet come into force.

Let's see what happens. Like a royal wedding its a great deal of fuss but does not really change much for criminal firms.

 
Dan McCurryMat Fresco is the founder of No Comment the largest police station agency in the country. He is a keen amateur web designer, programmer and photographer with boundless enthusiasm but a distinct lack of talent. Mat is a duty solicitor with years of advocacy experience but his passion is for defending clients prior to charge. He lives in a Hertfordshire with numerous rabbits, dogs and goldfish as well as four children.
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INAPPROPRIATE ADULTS
by Dan McCurry

26th February 2018
 
The arrangements for Appropriate Adults are in need of reform as they often do more harm than good to vulnerable defendants.
When I trained up in this business, I used a book by Ed Cape on police station defence. He warned that for a solicitor to fulfil the role of appropriate adult would be a conflict of interest, unless the solicitor also wants to ensure the juvenile gets home safely. This is ridiculous but the parliamentary committee tasked with updating the codes of Practice took this onboard and made it law, so the police are forced to continue with the procedure.

The problem is that the purpose of the law, as it stands, is not to reassure parents or to promote the bond between parent and child, but to ensure that the police are not being abusive to the vulnerable. The parents are treated as a nothing more than a tool to allow compliance. They are dragged to the station for the Rights and Entitlements, then made to wait or come back again for the interview, and often are required just to bail the young person, even if it is a 17 year who lives independently.

When a parent is unwilling to attend any 'suitable' person can be used. I've known officers to stand outside on the street looking for volunteers. These volunteers have no skills or experience but just stand passively to one side while the procedure takes place.

There is no conflict as far as the solicitor is concerned. We are concerned with the basic as well as the legal rights of the detainee. However the need of compliance with this law is a constant source of conflict. Although intended to be in the interests of the young and vulnerable, it is quite common for the suspect to be held in custody for several extra hours, sometimes overnight, due to the lack of an available appropriate adult. How is this in the interests of a juvenile or a person with a mental health issue? This abuse continues to be applied even when it becomes obvious that the detained person is completely innocent.

Parents of a persistent offender become so frustrated with the system that they quickly learn that they can refuse to attend the police station and have a social worker fulfil do the job. Surely we should be encouraging the bond between parent and child not undoing it.

I cannot think of a good reason why a 17 year old cannot be bailed due to the lack of an unqualified total stranger to stand passively present while they release him from custody. The idea that the youngster should remain in a cell because there is no passive unqualified stranger is a human rights abuse in itself.

The role of the solicitor is to defend both the legal and basic rights of the client. It is important to have a parent present if the parent wants to be there, or a mental health nurse or a care worker who knows the youngster. But it's an abuse to refuse to conduct an interview when a solicitor is ready and available but no parent wants to attend. In fact, the lack of an appropriate adult should be the reason to call a solicitor.

To have a solicitor and a professional appropriate adult is often confusing to the vulnerable person, as they have to have consultations about their well being twice over.

Law and procedure should consider the interests of the parent, and seek to increase not diminish their bond.

The law should not consider the solicitor's role as a conflict.

Never should a vulnerable person be locked up due to the lack of a passive total stranger with no qualification.

The codes of Practice must be updated.
 
Dan McCurryDan McCurry is a police station rep with over a decade of experience. Prior to that he was a BBC picture editor working on the 24 hour news channel. Dan is an active political campaigner and has become well known for his photographs of election campaigns. But he is perhaps best known as a writer; he is prolific and contributes articles to numerous publications, blogs and institutions including The Smith Institute and the New Statesman.
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THE TYRANNY OF TONE
by Dan McCurry

8th March 2018
 
Improving your bedside manner could have a dramtic effect on your bottom line. Client Care sounds easy but its more of an art than a science.
The reason why doctors make such effort to get their client care right is that they fear being sued, and malpractice is not the main reason that patients go to court. When a doctor makes a mistake, the patient is nearly forgiving if they like the doctor. If they feel they were not listened to, or treated arrogantly, they will sue. For this reason there has been a lot of academic study done, in order to help doctors get their client care right.

Solicitors don't often get sued. We just don't get called again and that is crucial to a firm's survival. So the lessons we can learn from these academic studies should be just as useful for our business.

Medical negligence lawyers say that what comes up time and time again in medical malpractice cases is that they were rushed ignored or treated poorly. One lawyer said, In all my years in this business I have never had a potential client walk in and say, 'I really like this doctor and I feel terrible about doing this, but I want to sue him' (Malcolm Gladwell, Blink).

One helpful way of orientating clients into the consultation, and away from the thoughts and questions that have been haunting them in their cell, is to give them a clear road map of the consultation. This is helpful way of making clients feel at ease with what is happening and less anxious to go straight to the question that has been occupying them, such as "When do I get out of here?"

Following the intros, a good plan is thus:
  1. I will explain the law and procedure.
  2. After that I will tell you the allegation and evidence.
  3. Then I'll ask for your side.
  4. Next we will decide whether you will answers question in the interview.
  5. Finally I'll ask you if you have any questions.
One academic study of the doctors took a recording of patient consultations and distorted the voices so that the listener couldn't hear the words but could follow the tone of voice. The listeners were very accurate at identifying which doctors had received complaints and which ones had not.

The most common reason for the tone being wrong was that the doctor was being dominant. People always want respect. If they don't get it, they fill with resentment. So being a good listener is vital, but this doesn't mean that a lawyer should be passive, it just means that the lawyer should avoid coming across as unsympathetic.

Clients are often difficult and will relay lengthy irrelevant stories if not pulled up short. For example in a domestic violence matter the client is often so emotional that he will want to persuade lawyer that the argument was his partners fault. The question for the lawyer is whether he hit the partner, rather than whose turn it was to do the washing up or whether she's a useless mother.

The lawyer needs to avoid excessively wasting time. Client care does not equate with losing control of the consultation. If necessary the lawyer should remind the client that the solicitor is not a friend but an advisor, which is more much important at this moment in time.

As legal aid practitioners we cannot control how many duty cases we are assigned, but we can increase the proportion of our clients who request us again or refer us to their friends. Getting the right balance between our tone and our professionalism should require just as much commitment as giving the right advice.
 
Dan McCurryDan McCurry is a police station rep with over a decade of experience. Prior to that he was a BBC picture editor working on the 24 hour news channel. Dan is an active political campaigner and has become well known for his photographs of election campaigns. But he is perhaps best known as a writer; he is prolific and contributes articles to numerous publications, blogs and institutions including The Smith Institute and the New Statesman.
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PARLIAMENTARY REVIEW
by Mat Fresco

8th March 2018
 
The Parliamentary Review is a govenment publication. Market leaders are invited to contribute articles highlighting best practice in their industry. This year No Comment, the biggest police station rep agency was honoured to be invited. This is the article but you can read the whole publication here: Parliamentary Review


Lawyers and politicians are as popular these days as the French royalty during the revolution. But that perception is hardly fair. Marie Antoinette is famous for saying, ‘Let them eat cake’ but she probably never said it.

It does not really matter if she said it or not, since it encapsulates an idea. As the grey huddled masses of Paris crowded at the gates demanding food, she was aloof. The poor had been ignored, their leaders were out of touch. To complete the revolution the last queen of France would have to lose her head.

Similarly, we all know lawyers are ‘Fat Cats’ doling out only as much justice as their clients can afford. Bad lawyers make cases drag on for years, good lawyers make them last even longer. As with poor headless Marie Antoinette, it’s not true, or at least it’s not true of all lawyers.

‘Fat Cat’ lawyers do not practice criminal law. No Comment is my company. It’s an agency providing criminal law firms with qualified staff. We represent people when they are arrested. We advise clients in police interviews. Criminal solicitors are mostly trying to help people who are in trouble. We often help the poorest in our society. Indeed, half the prison population has the reading age of an average 11-year-old.

If a solicitor has a client at any police station anywhere in England or Wales he or she can call us and we will dispatch a qualified solicitor within 45 minutes. We have more than 1,000 solicitors on our books. We cover interviews 24 hours a day, 365 days a year.

I started the business seven years ago almost by accident. Years earlier, when I was training, my boss had clients all over the country. I started making lists of freelance solicitors who could help out. I rapidly became known as the guy who could organise cover at short notice. I got so many phone calls that I eventually set up No Comment. Word of mouth allowed us to grow rapidly.

If you are thinking that you will never need our services, do not be so sure. According to a 2002 Home Office report, almost a third of men had a criminal conviction by the age of 30.

No Comment makes sure defendants are treated fairly. We police the police. When the state comes to take you away, we ensure they do it lawfully. We do not tell defendants what to say; we only tell them what the law says. We work with dedicated professionals who strive to do their very best for all clients. Defending people, even guilty people, is important.

The No Comment office is a bit like a newsroom at times and reminds me of my Dad, who was a photographer on the Daily Mirror, rushing around in the glory days of Fleet Street. Our phones only ring when something bad happens. It’s never good news. If we are involved, it’s murder, rape or just a punch-up. We only have 45 minutes to get to a police station so it can be exhilarating. We send solicitors to cover jobs at any time of the day or night. I can be like an angry news editor barking orders, although I shout about Legal Aid forms instead of scoops… but you get the idea.

Despite my flippant tone, it’s a serious business but a sense of humour makes it less stressful - hence the company name. Just days ago, a receptionist asked where I was calling from. I replied ‘No Comment’ and the phone was slammed down. It’s a name that makes most police officers smile.

The police have a tough job. They interview around one and a half million people a year. About 50% ask for a solicitor. Everyone has the right to a free, independent lawyer. But the lawyers are not paid at all well.

If you are paying tax then you are indirectly helping me with my mortgage. Thanks for that. But what a good deal you get!

Legal Aid rates for criminal law have not been increased since 1998. That’s nearly 20 years. Rates are not linked to inflation. There have been cuts too. I can think of no other industry or profession which has seen no increases for almost two decades. In my whole professional legal career I have never seen a rate rise.

It will come as no surprise to learn that newly-qualified lawyers are not turning to crime. Yes, there will always be cops and robbers so we are to some extent a recession-proof industry. Crime rates are complex but it is thought that the overall trend is down. Yet the police have recorded increases in crime too, particularly violent crime, in the last few years.

We can be more certain of how many cases solicitors covered. In the last decade there was a 27% drop in the number of police interviews attended by solicitors, in England and Wales. That might have a simple explanation: over the same period cuts to the police have resulted in a fall in the number of officers of around 20,000. Police budgets have been cut by £2.1 billion.

To be blunt, the fewer police officers we have the fewer arrests they make. That hits criminal law firms. In 2001 there were 3,500 firms practising criminal law. Now there are fewer than 1,400.

Baristers and solicitors are avoiding criminal law. As the money gets tighter, lawyers are leaving this branch of the profession. That is a big worry as, traditionally, our criminal judges are barristers with experience of criminal law.

As a business, No Comment faces interesting challenges. Our clients are the ever-dwindling ranks of criminal firms and their funding is ever-decreasing. As police numbers fall, the number of defendants at police stations decreases. Yet, somehow, No Comment has grown every year.

To grow we have had to be better, leaner and cheaper than the firms who instruct us. We are efficient, always looking for new ways to improve. We keep everything in-house so that we are in full control. We are paper-free. Our agents use an app which we wrote. Our app lets clients sign Legal Aid forms on the agent’s phone so the firm gets completed forms quickly. Client firms get reports and statistics immediately from our website, not slowly via the post. We grow by increasing market share.

I doubt we would have advised Marie Antoinette to answer ‘No Comment’ . She was probably innocent but didn’t get a fair trial. She was accused of a raft of trumped-up charges, including organising orgies, incest with her son, and treason. Her guilt was decided in advance by committee, and her lawyers were given only a day to prepare a defence. Criminal lawyers are here to ensure that never happens to you.
 
Dan McCurryMat Fresco is the founder of No Comment the largest police station agency in the country. He is a keen amateur web designer, programmer and photographer with boundless enthusiasm but a distinct lack of talent. Mat is a duty solicitor with years of advocacy experience but his passion is for defending clients prior to charge. He lives in a Hertfordshire with numerous rabbits, dogs and goldfish as well as four children.
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