Tweet Case in High Court

Paul Chambers

The ridiculous prosecution of a young fledgling accountant takes another turn as the High Court hears his appeal.


I blogged on this case recently and I think that previous decisions and the overall handling of the case from top to bottom strengthens the view that sadly pervades society that the law is indeed an ass.


Do the right thing Your Lordships. Please.

Post Updates

An update from the U.S. in relation to my recent blog post on self defence: “Reasonable Force: Take Care when Knocking The Door” http://bit.ly/KcTj81 Apparently it’s now deemed ‘self defence’ to stab someone in the back in Kentucky. Utter madness: http://indy.st/MMqrTg

Another update on my other post: "So You Say You're An Expert Witness? Oh Alright Then" http://bit.ly/L8kfoX An interesting recent judgment shows how a U.S Circuit Judge recently excluded expert evidence due a "lack of intellectual rigor". Ouch: http://bit.ly/PNJ2il

Confiscation: Counts That Lie On The File

David Winch, Forensic Accountant & Expert Witness

When a defendant has been charged with more than one offence he may wish to offer a guilty plea to some of the counts he faces if the remaining counts against him will not be pursued.  Those counts which are not pursued might be dealt with in one of two ways.  The prosecution could state in court that they propose to offer no evidence on those counts.  The judge will then formally record ‘not guilty’ verdicts in relation to them.

Alternatively the prosecution could invite the judge to agree that the counts are to be ‘left to lie on the file’ without any verdict being entered.  That means that the prosecution may only revive and proceed on those counts in wholly exceptional circumstances.

So it would appear that, in practical terms, the outcome is the same – those allegations have been disposed of and the defendant will no longer face prosecution for them.  But in any subsequent confiscation proceedings there is, I venture to suggest, a very important difference between these two methods of disposal.

Case law

Case law indicates that where a defendant has been formally acquitted of a count it is not open to the prosecution to suggest, in confiscation proceedings based on his conviction on one or more other counts on the same indictment, that the defendant was in fact guilty of that offence.  To do so would imply that the court has ‘got it wrong’ so far as the acquittal is concerned.

In R (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18 the Supreme Court held at paragraph [111] “the principle that is applied is that it is not open to the state to undermine the effect of the acquittal”.  Similarly the Supreme Court held in Gale v Serious Organised Crime Agency [2011] UKSC 49 at paragraph [115] “in all proceedings following an acquittal the court should be astute to ensure that nothing that it says or decides is calculated to cast the least doubt upon the correctness of the acquittal”.

In this respect the UK Supreme Court judgments are consistent with the decision of the European Court of Human Rights in the case of Geerings v The Netherlands [2007] ECHR 191.  In the Geerings case a confiscation order made against Mr Geerings following his conviction of certain offences was assessed, in part, on the basis that he was in fact also guilty of other offences of which he had been acquitted in the same proceedings.  The European Court held that this had violated his Article 6(2) right to the presumption of innocence.

In contrast where counts have been left to ‘lie on the file’ I suggest that it is open to the prosecutor, in confiscation proceedings, to suggest that the defendant is in fact guilty of those offences.  Indeed in a ‘criminal lifestyle‘ confiscation the defendant may find that the burden will rest upon him to satisfy the court, on the balance of probabilities, that he is not guilty of those offences.

Simon’s case

An example from a recent case in which I was involved as an expert witness may underline the point.  The defendant, let’s call him Simon, ran a plant hire business.  His premises were raided by the police who examined 91 items of plant which he hired out.  They found 39 of these items to have been stolen property.  Simon was charged with 39 counts of ‘handling’ under s22 Theft Act 1968 on the basis that he knew or believed these items to be stolen.  Simon denied that he knew or believed the items to be stolen but, shortly before the matter came for trial, he pleaded guilty to 9 of the 39 counts and all parties agreed to the remaining 30 counts being left to ‘lie on the file’.

Simon was subsequently subject to confiscation on the basis that he had a ‘criminal lifestyle‘ having been convicted of more than 3 offences and having obtained from them a benefit of at least £5,000 (which was not disputed).  In the confiscation proceedings the prosecution asserted that the income generated from the hiring out of all 39 items was benefit of Simon’s criminal conduct.  The defence contended that the benefit should be assessed only by reference to the income from the hire of the 9 items in relation to which Simon had been convicted.

The judge heard oral evidence from Simon regarding his state of knowledge concerning the 30 items and also heard oral evidence from other witnesses.  The judge entirely disbelieved and rejected Simon’s evidence and based the confiscation order on the income generated from the hire of all 39 stolen items.

In approaching the matter in the way he did, the judge acted consistently with the recent Court of Appeal judgment in Bagnall v R [2012] EWCA Crim 677.  It was open to the judge to apply the statutory assumptions which, in his judgment, Simon had failed to rebut in relation to income generated from the hire of all 39 stolen items.  This did not, in law, amount to a finding that Simon was guilty of offences of which he had not been convicted (although it had the same effect in terms of the confiscation order).

No doubt the outcome of the confiscation would have been significantly different if Simon had been formally acquitted of the 30 counts to which he did not plead guilty.  Alternatively, had Simon insisted, insofar as he was able, that he face trial before a jury on the 30 counts (and, in my view at least, a defendant has a right to a fair trial on all the counts with which he has been charged) it is possible that he would have been acquitted on some or all of those counts.  In a jury trial the burden would have been upon the prosecution to prove, to the criminal standard, that Simon knew or believed that each of the items of plant was stolen.  As things turned out, acquittals on any of the counts would have led to a better outcome for Simon in the confiscation proceedings.

So, for a defendant and his legal team, agreeing to counts being left to ‘lie on the file’ may be a less attractive option than it appears.

So You Say You’re an Expert Witness? Oh, Alright Then

When I was in practice I encountered expert witnesses on a pretty regular basis, either from reading their reports or across a courtroom. As crime was my thing I’ve lost count of the times I’ve had to ask my medically trained wife what a ‘mandibular symphyseal fracture’ was, or something similar. But amongst all the technical stuff my feeling was that many lawyers tended to accept the qualifications of the expert to give his or her opinion, even though we’d often get our own expert to have a look at the report. In my experience there was rarely any scrutiny on an expert’s ability to espouse an opinion even though that opinion was sometimes challenged.

Most experts I’ve dealt with have been very good and highly professional, though I recall one instance when I questioned ‘my’ expert before a case (anticipating opposing counsel’s line) and yet when he was cross-examined he completely flipped and destroyed the case. Such is life.

So it was with some interest I spotted a story last month about the supposed falling standards ofexpert witnesses in family law courts in England & Wales. Now my experience in family work is limited, but I just wonder whether this applies across the board. Us criminal hacks tended to go with the flow a tad, but I suspect that as expert witnesses are involved in a much higher percentage of family cases the scrutiny is greater. Well, the Coalition Government seems to be getting its knickers in a right twist over this, and I do have some sympathy. In this particular instance the criticism is leveled at psychologists who are giving opinions in life-changing cases so the stakes are incredibly high. That said, the undertones appear to suggest there may be a more sinister motive at work – you’ve guessed it – keeping costs down.

Justice Minister Jonathan Djanogly said "The main elements will be to raise the threshold for a court to permit an expert to be instructed, where expert witness evidence must be necessary rather than reasonably required. “ This confirms that the courts will be told to use fewer experts in future.

That said, according to the Family Justice Review Report in November last year, a staggering 20% of psychologists used in family cases were deemed ‘unqualified’ to prepare reports and an even more astonishing 65% of those reports were of low quality.  Nobody can possibly agree that this is acceptable.

So what’s the answer? Expert witness training through organisations like Bond Solon is recommended for any expert witness, experienced or otherwise, in my view. If you’re good enough then you’ll have nothing to worry about if and when the authorities start regulating.

Despite this I don’t see a U.S style Daubert treatment of experts any time soon. For those who don’t know, in most U.S courts the judge acts as the ‘Gatekeeper’ when expert witnesses are involved following the case of Daubert v Merrell Dow Pharmaceuticals in which he or she determines the test of expert witness evidence being grounded in scientific knowledge which assists the trier of fact in coming to a finding. The case has resulted in much more control over not only an expert’s qualifications in being able to give an opinion but, some would say, has led to any ‘cutting edge’ science being excluded from the courts. As a keen watcher of the U.S system it appears to me as if judges there are more ready to exclude expert evidence than here – and they do on a regular basis, either in part or in full.

This may come. Who knows? Previous UK governments have made noises about regulating experts but nothing happened. In the meantime the watchword has to be training. Whether expert witnesses are involved in family cases or not, if they make the effort to be properly trained in court rules and procedures, techniques in report writing and giving oral testimony there will be little to fear from regulation in the future.

Reasonable Force: Take Care Knocking The Door

‘An Englishman’s home is his castle’ so the saying goes. But whatever your nationality we all know what that means. Our home is our sanctuary, our place of safety where we feel protected from the dangers, real or imagined, that lurk in the outside world. Just as shark attacks strike some sort of primeval chord in most of us, being attacked in our own home has a similar effect.

Contrary to a popular belief fuelled by the ignorance of many journalists, the law has always given the right of self protection to individuals, whether in their own homes or otherwise. Without going into too much history, we’re all allowed to use ‘reasonable force’ to defend ourselves, even to the point of attacking first if we perceive that violence is about to be used on us. I’ve dealt with hundreds of cases where magistrates or juries have acquitted defendants because they have accepted that he or she was acting in a genuine belief that they had to use violence in the given circumstances.

I’ve also encountered cases where courts have believed that defendants have overstepped the bounds of ‘reasonableness’ and may have initially acted in self defence but have then gone ‘over the top’, inflicting serious injury on their assailant. Many members of the public may say that’s just a case of tough luck and the assailant got what he deserved, but I’m sorry, Mr. Joe Bloggs, you’re wrong - and the law agrees with me.

So you see, the system tends to work quite well, with courts being able, in the given circumstances of each case, to make a finding on what was reasonable and what was not. Fact is, they get it right more often than not.

The case of Tony Martin (pictured) and more recently Munir Hussain have highlighted the issue of how far potential victims could go in defending themselves or their property. The public mood was swayed by the Murdoch press with calls for increased protection for victims, with a charter for retributive on-the-spot justice, meted out by those who were wronged.

As recently as last year we had the case of Cecil Coley, who fatally stabbed an intruder trying to steal from his shop but who was never prosecuted shows that the authorities are not averse to applying the ‘reasonable force’ doctrine in favour of a perpetrator on occasions. As the DPP himself has said:

“There are many cases, some involving death, where no prosecutions are brought ... We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict. So these are very rare cases and history tells us that the current test works very well.”

He’s right, of course, and those on the backbenches who are baying for a vote-grabbing change in the law should look across The Pond for a lesson in how the powers that be can get things horribly wrong.

Seven years ago, Florida passed a law dubbed ‘Stand Your Ground’ that in some shape of form mirrors similar laws passed in more than half of the states. In most cases the law passed simply sets out in statutory form, the rights of citizens to use force if they hold a ‘reasonable belief’ they are going to be attacked. Note that the ‘reasonableness’ refers to the belief, not the force used. You can see the relevant legislation here.

The law allows the potential victim to use ‘deadly force’ in certain circumstances, including the prevention of ‘great bodily harm’ to his person and there is a presumption that the person had such a belief when his home is being forcibly entered. In other words, if a burglar comes-a-calling in Florida you can blow his head off. I may be doing the Great British Public a disservice but I suspect that this would find great favour with most of them. But wait.

It seems that the law isn’t widely supported by the State Judiciary, with Circuit Judge Joseph Will commenting: "I think it's a bad idea in a society where someone is packing heat on every corner to make it easier to shoot each other."

The law has also resulted in ‘justifiable homicides’ nearly tripling, and the number of concealed weapons permits almost quadrupled in the same time period.  Inevitably this has resulted in hardened criminals getting what some would say is their comeuppance at the hands of their would-be victims, but equally inevitably, controversies are becoming far more regular. The most publicly known case is that of the killing of Trayvon Martin by a Neighbourhood Watch security man, George Zimmerman, who indicated that he was attacked by the previous law-abiding and unarmed black teenager. Zimmerman, who exhibited some evidence of injury himself, was not initially charged, but following a public outcry now faces an allegation of second degree murder. The case has polarized opinion in the U.S to such a degree that even President Obama has commented on it.

But what caught my attention was the lesser known case of Charles Robbins, an 82 year old Daytona resident (pictured) who, having heard a repeated knocking on the side door of his house took a pistol (as you do) and fired it through the door without opening it. The shot hit 24 year old Tyler Orshoski in the abdomen and he died on the driveway. Robbins was to tell the police that he “..got him before he could get me and I did a good thing. He hung himself out there to get killed and he got it.”

The police, quickly followed by the media, picked up on the fact that Orshoski had implements on him that could have been used in a burglary and he had been arrested numerous times though he’d never been convicted and did not have a history of violence. The Chief of Police didn’t seem bothered with any of this, nor the fact that Orshoski had been knocking on the door and apparently not trying to force an entry at the time he was shot. The Chief said, “Mr Robbins did something law enforcement hasn't been able to do, put a suspected burglar out of business.” Note the word 'suspected'. It’s curious that this officer had been recently publicly bemoaning the fact that drug dealers who had shot each other were invoking the self-same law.

Now I’m not naïve enough to think that Orshoski was knocking on Mr.Robbins’s door with a view to see if he could run some errands for him. But it’s obvious that this particular octogenarian was extremely fortunate that (1) he lives in Florida and (2) that the man knocking his door was in all likelihood up to no good. For all Robbins knew, it could have been The Daytona Chapter of Jehovah’s Witnesses paying him a call. If you’re sympathetic to Mr Robbins, would your view change if he’d shot and killed a nun collecting for charity? Extreme, maybe but a possible scenario. Under Florida law, if he, living in a rough neighbourhood as he was, and being in a vulnerable position because of his age had a 'reasonable belief' he was under threat, presumably no charges would have been brought. Of course, I'm hypothesising.

But this is just the sort of thing that can happen when the legislature gives citizens rights such as these and the U.K Parliament should take note, even though I’d be the first to concede that thankfully we don’t have the gun culture that is inbred into our transatlantic cousins.

As Circuit Judge Will says "We had a law that had been used for well over 100 years, it was time-tested and worked for everyone.  Someone decided to fix something that wasn't broken and they fixed it badly.”

‘Stand Your Ground’ has attracted much unwanted attention and the Rev. Jesse Jackson, in calling for its repeal put it as eloquently as ever: "These laws incentivise vigilantism, take-the-law-into-your-own hands, kill or be killed. That's beneath the civility of a great nation.”

Please, Parliament, learn the lesson.