Somewhere-in-London Crown Court, application to vacate plea hearing, time estimate half a day.
As usual I am the first to arrive and so I sit outside court 10 and wait. Three rather grumpy solicitors arrive together and plonk themselves beside me. What they say makes little sense, they seem rather nervous and keep flicking through pages and pages of typed up statements and handwritten notes. They ask me if I am the Polish interpreter in the case of Daniel so and so. Yes, I reply ready for a friendly chat, and ask them if they are their defence team. ‘Not any more’, hisses one of them, his barrister will be with you soon. Okay, then… Attempts at small talk abandoned, I wait on. Larger than life barrister arrives and we go to the cells to talk to Daniel. I have a vague recollection of dealing with both of them before on the day of his ineffective trial. As the conference progresses, it all comes back into focus. Daniel arrived in London 7 months ago. Three days later he managed to get lost in Brixton. Not having a bank account he carried all his money, several hundred pounds, in a wallet in his trouser pocket. He got on a bus and attempted to pay for his ticket taking out a £50 note from his wallet. The bus driver told him where to go. He got off. He noticed that another man, who got on the bus just behind him had now hopped off too. This planted a suspicion in Daniel’s mind that the man intended to rob him. When the man then followed Daniel to another bus stop and, according to Daniel, brushed against him, it was confirmation enough and at this point he punched the man in the chest. A single punch, as he maintains. The other man fell to the ground and sustained multiple serious injuries, including fractured pelvis, fractured skull and brain haemorrhage. The victim turned out to be a severely autistic frail man. Daniel was arrested, interviewed and charged with section 18 and section 20 offences. Which is industry jargon for GBH with intent and plain GBH respectively. On conviction the two short words ‘with intent’ can add 5 years to the prison sentence.
From the word go Daniel was being advised by a firm of solicitors that shall remain anonymous. A solicitor who assisted him during police interview advised him early on not to answer any questions. This confused Daniel who was desperate to tell the police his version of event, which was that he punched this man in order to protect himself from being robbed. He maintained the same position throughout. He did not assault this man, did not attack him, he acted only to protect his property. He emphatically denied any intent to cause harm to the victim. He claimed the solicitors advised him that based on the extent of the victim’s injuries he should plead not guilty to section 18, but guilty to section 20. At court he followed their advice, adding a basis of plea. Basis of plea is a kind of ‘yes, but, no but’ approach. I admit the offence, but not quite, not all of it and I am generally a nice person. The basis of plea needs to be put in writing and offered to the prosecution. Most of the time a lawyer writes this up and the defendant agrees it and signs.
Sometimes, quite often actually, defence are able to make a deal with the prosecution and if the defendant pleads guilty to one offence, the prosecution are prepared to remove the more serious charge and proceed to sentence the defendant only on what they pleaded to. In our case the prosecution did not accept Daniel’s plea to section 20 on the basis and insisted on keeping section 18 offence on the indictment, so the trial date was set.
In the intervening months the solicitors visited Daniel in prison, went over details of the case with him and prepared his defence statement.
On the first day of trial his barrister went to the cells to say hello and to confirm the position.
Just to clarify, barristers often meet their clients for the first time on the day of trial. They are the big guns of justice complete with moth-ridden wigs and other intimidating props. The case is prepared by a firm of solicitors, who then assign the job of representing the defendant in court to a barrister.
Daniel repeated his mantra that he only pushed or punched this guy once to protect his wallet as he genuinely thought that the victim was about to rob him.
And this is when the brown stuff hit the fan. The barrister asked Daniel, ‘Just out of interest, why did you plead guilty to section 20 assault if you claim that you were acting in self-defence?’
Daniel shifted in his chair and said in a rather tired voice the line he had repeated endlessly in the recent months, that he did not assault anybody, he was just protecting his money. In the next twenty minutes the barrister patiently unravelled the case thread by thread and came up with new course of action for Daniel; sack your solicitors, as they did not give you correct advice on self-defence, waive the legal privilege in relation to the confidentiality of advice received, and then he, the barrister will make an application to the court to vacate the guilty plea to give Daniel an opportunity to enter a not guilty plea to section 20 as he believed he acted in self-defence.
That was two months ago and here we are today, the barrister reading himself for battle against Daniel’s previous solicitors. He is rearing to go, almost boyishly excited about the whole thing. He whispers to me, shaking his finger, you see the solicitors are pulling rank now, they all recently prepared statements claiming that they had fully advised Daniel on self-defence and the use of reasonable force. But they didn’t, you see! They didn’t! He literally jumps up and down. None of them mentioned it in in their attendance notes from court or notes taken during any of several conferences they held with Daniel! I am sure of it!
We go into court. The judge makes his displeasure with the barrister’s application abundantly clear. The idea of putting a team of solicitors in a witness box so their professional judgement can be challenged by a defence counsel does not sit comfortably with him.
Daniel gives evidence first.
– What is your understanding of section 20 is and why did you plead guilty to it?
– I pleaded guilty because I did hit the man.
– Did your lawyers explain the concept of self-defence to you at any stage?
– Did they explain the concept of reasonable force at any stage?
– Do you accept that you assaulted the victim?
– Did you intend to cause him any harm?
We break for lunch. The solicitors outside view me with suspicion. Al a bit childish really.
In the afternoon the solicitors all give evidence. The barrister is grilling them on the lack of any reference to self-defence in any of their copious notes and documents prepared during all previous court hearings. He suggests that they did not advise Daniel properly in the case, and they denied him the option of running self-defence argument during his trial. They are all asked the same questions, all give more or less the same answers, which is that they did not see the need to write this up in the documentation but yes, they fully advised Daniel on self-defence, of course they did, as they always do. The judge clearly sides with the solicitors throughout. At some point he actually apologises for all the questions, and shouts at the barrister for trying to doubt the solicitors’ professional integrity. This part of the early afternoon courtroom drama makes for very uncomfortable viewing. I wish for a commercial break or two.
The judge announces his decision. He starts by telling the barrister off for accusing the solicitors of unprofessional conduct. It all seems a foregone conclusion until, in a twist worthy of an episode of Silk, the judge picks up the, half forgotten by now, basis of plea document and says, ‘there is however an ever so small criticism that can be extended to the content of this document, which makes it equivocal, and therefore I am obliged to give the defendant benefit of the doubt, small as it is, and so I allow the application to vacate previous guilty plea’. Jaws drop, eyes open wide, silence in the courtroom.
Daniel gave up listening to the proceedings about an hour ago. I nudge him and repeat the result of today’s hearing. He stares at me blankly. All of this overwhelms him. He responds to being re-arraigned in a daze. A new trial date is set and we wrap up for the day. Daniel’s exhaustion rubs off on me.
The barrister catches up with me outside. His excitement unabated, he rambles incessantly, giving his interpretation of today’s events; you see, judges don’t like exposing solicitors as incompetent, so he picked a totally inconsequential argument, limiting his criticism of their action to the drafting of one document, because he wasn’t going in a million years agree with me even though it was obvious he agreed with me, blah blah blah. I began to drift. It’s been a long day.
So, anyway, what I meant to say is, I love my job and one way or another, I have hardly ever a dull moment at court. Too drained to think of a better punchline.