Thursday, 28 June 2012

The Prince and the Pauper

I know I moan every time I go, but on Monday I went back to Tower Bridge Mags to watch another afternoon of depression, “justice” and petty-crime. I’m not going to be able to get along to court much in the coming months as I’ve been lucky enough to find a job which should tide me over til the autumn, so this will be the last court report for a while.

I’ve written a couple of lines every now and then over the last few months about the Legal Aid reforms. I haven’t gone into the reforms in depth – I’d rather leave that to better minds than mine – but one of the more convincing arguments, in my opinion, is the risk of an increased number of unrepresented defendants. In a previous post I wrote about Eddie’s struggles with an unrepresented defendant back in February; on Monday I saw yet more evidence of how badly things can go when people are left to face the State on their own.

The case was regarding an alleged benefits fraud, specifically housing benefit. There were problems with Legal Aid in the case, and the defendant had no representation at all. She had previously retained a solicitor but she couldn’t afford to pay them any more. The allegation was that the defendant was not a ‘commercial tenant’ and so should not have claimed over £8,000 in housing benefit as housing benefit is apparently only to be paid to commercial tenants. There are a number of tests that council’s use to decide whether a lease is a commercial lease or not (and it’s worth noting here that ‘commercial’ here doesn’t refer to ‘commercial property’, like a shop, instead it refers to the purpose of the lease – is the landlord letting it on the market for an income/profit or are they doing it at mates’ rates?). There are many factors to take into account such as whether or not there is a written agreement, whether the rent is always paid, what happens if the rent is not paid, whether there is an existing relationship (of any kind) between the landlord and tenant, and so on. It is perfectly possible for a son to be a commercial tenant of his father without a written agreement; likewise you could have a full written agreement with a complete stranger but the council might decide that it is not a commercial agreement. Effectively, these things can be fairly subjective.

In this case the council wanted their money back. The defendant had been going through rough times and so the landlord had let her off rent for 4 or 5 months while she got back on her feet, had paid some of her bills for her and had become quite good friends with her. The council said that housing benefit is to be used for rent ONLY, and the landlord allowing her to spend it on other things is an abuse of that benefit, and actually amounted to fraud on the part of the tenant.

I’d never come across a similar case before, and struggled to get to grips with the law. The defendant had absolutely no idea. The case was prosecuted by the DWP and their in-house lawyer did a good job of explaining the case to the Magistrate. His examination in chief of the council’s benefits officer was pretty clear, and then up stepped the defendant.

Her cross was, understandably, shocking from beginning to end. It was exactly as you would expect a person with no training, no experience, and no understanding to be – unstructured, incoherent and damaging (to her own case). I could see what she was getting at, though:

The DWP’s witness said that housing benefit is only to be paid for rent, and should never be spent on bills. The defendant tried to make a point along the lines of: “But surely there’s a grey area? Sometimes rent will include some bills, sometimes it won’t. It’s surely impossible to say that housing benefit can never legitimately be spent on anything other than rent?” The magistrate tried to help her out as well (as he is bound to do), but instead we ended up with the defendant screaming about mandatory water charges in certain blocks of flats, and then bursting into tears.

The defendant soon abandoned that route and accused the witness of offering a plea bargain at the last hearing. Except the witness wasn’t at the last hearing. The defendant’s response? “Well, it was a short fat man, just like you, and it was easy to make a mistake”. The point won me over, at least.

The prosecution case closed, and the defendant started giving her own evidence. I have seen more coherent things written in faeces on the walls of grotty public toilets. But, the defendant can’t be blamed – she was in an incredibly frightening situation: the government is accusing you of a crime, there is no one to support you, no one to advise you, no one in your corner. It’s hard enough representing someone else, when you’re not emotionally invested in the case – imagine your liberty is on the line.

I must confess, I couldn’t hack listening to it any more. More and more, I wanted to get involved, to provide some kind of advice or representation – but as we all know, I’m just not qualified to do so, yet. So I had to leave the court. I was, frankly, angry at the way this poor woman was struggling.

So I went upstairs to Court 2 to watch the railway prosecutions (a mainstay at Tower Bridge Mags). The list was full of absent defendants – so I was going to watch the court deal, administratively, with 40 or 50 cases in a row, with the same result each time (found guilty in absence, fine, costs, victim surcharge, cost of the ticket that was avoided). I hoped that the simple humdrum repetitiveness would chill me out somewhat. It worked for 20 minutes or so – the magistrate thought I was a nutter for sitting down and watching something so mundane – but then a defendant actually showed up.

In these cases, the prosecutions are brought privately by the railway companies – the prosecutor is normally some office functionary who reads out their version of the facts – there’s no defendant to worry about, magistrate finds in their favour, everyone goes home.

When a defendant actually showed up, I could (almost literally) see the fear in the ‘prosecutor’s’ eyes. He wasn’t cut out for this. He was just an admin guy in a stripey jumper. Nonetheless, he pulled himself together and read out his version of the facts (on this occasion is was a bus service operated by the railway company). The judge asked the defendant to respond:

“Sir, I’m a law student at King’s College London. I was indeed travelling on the 171 Bus to Aldwych. I tapped my Oyster but didn’t see if the greenlight flashed or not. I also did not hear the beep as I was listening to my mp3 player. The driver did not stop me or point out to me in any way that my Oyster card had failed to validate. I naturally assumed all was okay, and got on with my journey. Ticket inspectors got on the bus at Elephant and Castle and said that I had not validated my Oyster, and I did argue with them. I offered to try validating it again but they did not let me do so. They asked for my name and address and said I would receive a court summons. I received the summons, and wrote to the company and asked them to disclose their CCTV for my inspection, so that I could prove that I did indeed attempt to validate the Oyster, and that I lacked the intent to avoid paying my fare. They did not respond and have not been willing to engage with me in any further discussion. So here I am today, and I’m happy to answer any questions you might have.”

The ‘prosecutor’ looked like he was going to die and asked for an adjournment. He went outside, and the defendant followed him. Two minutes later he came back in and said to the Magistrate:

“Sir, I have accepted payment of £1.35 in cash from the defendant, and now abandon this prosecution.”

Yes, all very funny – but I’d be willing to bet that the vast, vast majority of self-represented defendants act more like the first lady, than the second.

No comments:

Post a Comment