R v Abdulrahman ~ Grievous bodily harm to baby ~ Post partum psychosis ~ Sentencing



In the Crown Court at Birmingham, Mrs Justice Thirlwall has imposed a sentence of 30 months imprisonment on Jaymin Abdulrahman who was convicted of causing grievous bodily harm to her then six day old baby in September 2012.  The judge's concise sentencing remarks are available via the Judiciary website - (HERE).



The baby was born on 2nd September 2012. On 8th September, Abdulrahman placed the baby in a bin liner, put the liner in a rubbish
chute and closed the chute causing the baby to fall from the 5th floor to the bins below.  The result was that the baby suffered
catastrophic head injuries which, according to the judge, will last for life.


Abdulrahman was acquitted of both attempted murder (which would have required proof of intention to kill) and inflicting grievous bodily harm with intent (Offences against the Person Act 1861 s.18).  She was convicted of causing grievous bodily harm - (Offences against the Person Act 1861 s.20) - an offence with a maximum sentence of 5 years imprisonment.

The judge's remarks state that the jury were satisfied that Abdulrahman was or may have been suffering from post partum psychosis at the time of the offence.  The Sentencing Guidelines were considered and a starting point of 18 months identified - (page 8 of the guidelines).   The guideline range is 12 months to 3 years.   Counsel urged a sentence which would have permitted immediate release so that Abdulrahman could be assessed within family proceedings as a potential carer.  The judge considered that submission with great care but rejected it since the sentence had to recognise the seriousness of the consequences.  30 months imprisonment was considered to be the shortest which could be imposed.

The 1861 Act is seen as archaic and in need of reform.  It is the subject of extensive judicial interpretation.  The Law Commission has been asked by the Ministry of Justice to consider reform and work is to commence in 2014.   The Commission produced an earlier report in 1993 (LC 218) but no action was taken to being the recommendations into law.
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Mid-week News Roundup


Updated 20th June ... Crown Prosecution Service 11th June - Interim Guidance on prosecuting cases of child sexual abuse

DPP - final guidelines for prosecutions involving social media communications


Human Rights ~ Remember the Commission on a British Bill of Rights? - Law and Lawyers 18th December 2012.   A Library Note has been issued by the House of Lords in advance of a debate on 20th June about “the report of the Commission on a British Bill of Rights”. The Note contains a brief summary of the development of human rights law in the United Kingdom and previous proposals for a British Bill of Rights, before précising a selection of the findings of the report of the Commission on a Bill of Rights. The Note concludes with an overview of some of the responses to the report.

In the European Court of Human Rights, an application may be rejected if it is 'manifestly ill-founded.'  Ever wondered just what this phrase means?  Is it possible for a decision that a claim is 'manifestly unfounded' to be made by a majority?  The answer to that is YES.  Strasbourg Observers consider this in an interesting and useful post.  They note - ' ... unlike in judgments – no information is given on the division in the Chamber that delivered these decisions. The decision merely states “manifestly ill-founded, by a majority”, without indicating how many Judges
disagreed. Secondly, because there is no room for separate opinions in decisions. We can thus not know why the Judge(s) in the minority disagreed on the finding that the claim was manifestly ill-founded. As a result of both factors, we are left puzzled as to what “manifestly ill-founded, by a majority”, a seemingly contradictory statement, might mean.'

Legal Aid ~ The row over the government's latest legal aid proposals continues. Gemma Blythe, Caseworker at Kent Defence and Law Student at the University of Kent, attended Legal Aid Question Time in London hosted by Joshua Rozenberg on 18th June 2013.  The panel included Lord McNally (Minister of State for Justice, responsible for legal aid), Andy Slaughter MP (Shadow Justice Minister), Steve Hynes (Director, Legal Action Group) and Maura McGowan QC (Chairman of the Bar).  Gemma wrote up a report on this meeting on her blog - Gemma's blog - thoughts on the criminal justice system   Please read her clear report.   Another good report of this meeting is at Head of Legal blog. 

There is to be a backbench debate in the Commons about the government's legal aid proposals - Back Bench debates announced for 27th June .

Meanwhile, the Attorney-General has rejected a call to cap government instructed lawyers' rates at legal aid levels.

Copyright ~ This blog has said very little about the very important topic of Intellectual Property.  One form of such property is Copyright and a very useful explanation of the subject is available.   


Supreme Court ~

Recent judgments - On 19th June, some very important judgments were handed down by the Supreme Court of the UK. 

Bank Mellat (Appellant) v Her Majesty's Treasury (Respondent) (No 1)
Bank Mellat (Appellant) v Her Majesty's Treasury (Respondent) (No 2)
Please note that the following documents contain judgment No 1 and No 2.
Cusack (Respondent) v London Borough of Harrow (Appellant)
Smith and Others (Appellants) v The Ministry of Defence (Respondent)
Ellis and another (FC) (Respondents) v Ministry of Defence (Appellant)
Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant)

A speech - The President of the Supreme Court (Lord Neuberger) has made a speech - Judges and Policy: A delicate balance.  This includes some very pertinent observations about legal aid.

It is ... entirely proper for the Judiciary to stress to the Executive and Parliament that it is fundamental to the rule of law that every citizen, perhaps above all the poor, the vulnerable, the disadvantaged, should be able to go to court to vindicate their rights or to defend themselves, whether to challenge excesses of Executive power, to protect private rights, to be compensated for wrongs, to secure family rights, or to defend themselves if prosecuted.


Prisoner voting - The court has heard two cases concerned with prisoners and voting - R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent) and McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland).  See Prisoner Voting: Murderers challenge ban - BBC 10th June 2013.   

In domestic law, serving prisoners are disenfranchised from voting in national and European elections by the Representation of the People Act 1983 section 3 (“ROTPA”) and the European Parliamentary Elections Act 2002 section 8 (“EPEA”).

Surveillance ~  The extent of surveillance on society in a so-called 'free world' is now of massive proportions ranging from international monitoring of communications; undercover police work; to CCTV cameras on almost every street.  Writing in The Guardian, Anya Proops asked - Prism: how can this level of State surveillance be legal - It's hard to see how any system that captures data from millions of law-abiding citizens satisfies our right to privacy.

Foreign Secretary William Hague made a statement about GCHQ and the United States Prism system and how information obtained outside the UK is handled if it is forwarded to the UK government.  Hague claimed that the UK has robust controls in place to balance security / safety and the rights of citizens to privacy.  Note: The Justice and Security Act 2013 sections 1 to 5 and Schedule 1 strengthen scrutiny of the Intelligence and Security Services.  These sections are in force from 25th June 2013.

Library of the European Parliament - US views on PRISM and FISA

It is reported that Undercover Policing faces tighter regulation as a result of the Mark Kennedy situation.

The Home Office has issued a Surveillance Camera Code of Practice - June 2013.

Banking ~ if reading all of the above is not enough, there is the lengthy report of the Parliamentary Commission on Banking Standards.  The Commission was established in July 2012, in the wake of the LIBOR scandal, to conduct an inquiry into professional standards and culture in the UK banking sector and to make recommendations for legislative and other action.  The report has been described by some as 'naive' and unworkable - see article at Legalweek

Note: The Serious Fraud Office has charged one person with conspiracy to defraud in relation to LIBOR rigging.
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R v Benjamin Curtis ~ Sentencing ~ Manslaughter (by shaking) of baby


Benjamin Curtis has been sentenced to serve 2 years imprisonment for the manslaughter of Ocean Elliott.  The brief sentencing remarks of Nicol J are available via the Judiciary website - (HERE).  The judge described Curtis as having learning disability and as having a limited ability to understand verbal information.

Curtis pleaded guilty to manslaughter at a late stage in the proceedings but he was allowed a full one-third discount on the basis that expert evidence was required to establish a causal link between Curtis shaking baby Ocean and her subsequent death.   The shaking occurred when Ocean was 14 weeks old but she lived - albeit with serious disability - until approximately age 2 years 9 months.

In 2006, Curtis had received a caution for
hitting Ocean’s step-brother on his bare bottom.  In relation to the injuries suffered by Ocean,  Curtis had already stood trial on a charge of intentionally causing her really serious injury but the outcome of that trial was that he was convicted of assault.  Nicol J made some allowance for the sentence imposed for that offence but the remarks do not state what the allowance was.  Also, the remarks do not tell us how the judge's initial sentence of 3 years was reached.  Nicol J said:

'Your counsel recognises that this offence is so serious that only a sentence of immediate imprisonment will be sufficient.  Taking all of this into account (including the sentence which was passed on you for the assault on Ocean) but assuming you had contested the present charge, my sentence would have been 3 years imprisonment. Because of your plea of guilty, the sentence will be one of 2 years imprisonment.'

Unfortunately, there is no mention in the judge's remarks of any appeal court cases dealing with sentencing for this form of manslaughter - e.g. Attorney-General's Reference 125/2010 [2011] EWCA Crim 640 where a sentence of three and half years on Graeme Draper was increased to 5 years.  Draper pleaded guilty of the manslaughter of a 4 month old baby.

Earlier this year, Benjamin Roach was sentenced to 7 years for the manslaughter of 1 month old baby Roxie Hopkins-Roach.  In January 2013, Stephen Coukham (age 18) was sentenced to three and a half years for the manslaughter of 3 month old baby Tyrone.
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R v Stuart Hall ~ Sentencing

Update 11th July - the Attorney-General has referred the sentence imposed on Stuart Hall to the Court of Appeal.

Sentencing offenders is a difficult legal art and not a science.  From time to time there are particular cases where one is saddened to see a particular defendant in the dock but the law must be upheld.

One such case is, to my mind, that of the veteran broadcaster and presenter Stuart Hall who has been sentenced to a total of 15 months imprisonment for 14 counts of indecent assault committed in the period 1967 to 1985/6 on victims in age range 9 to 17.  Some of the offences involved breaches of trust.  The sentencing remarks of the Recorder of Preston ( His Honour Judge Anthony Russell QC) are available via the Judiciary website - (HERE). 

In his remarks, the judge noted that the offences varied in seriousness.  There were
no sentencing guidelines available for such historic offences but the judge said that some assistance was available from guidelines for offences under the Sexual Offences Act 2003.   The modern guidelines indicate factors which aggravate or mitigate offending.  The Court of Appeal (Criminal Division) case of  R v H and others [2011] EWCA Crim 2753 on sentencing historic cases was followed.  This requires sentence to be passed according to the law as it was at the time.

In addition to the imprisonment, Hall is now subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 for a period of 10 years.  (A Sexual Offences Prevention Order was not considered to be appropriate given that Hall's last offence was over 25 years ago).  Hall's name is also on the list of barred persons under the Safeguarding Vulnerable Groups Act 2006.  He has been ordered to pay costs of £11,522.

It would have been possible for consecutive sentences to have been imposed.  The judge chose not to do so for reasons explained in the remarks.  Instead, a sentence reflecting the totality of the offending was imposed and the sentences for each offence are to run concurrently.

Victim Personal Statements were available to the judge but are not revealed in the remarks other than in a general way.

The judge declined to make any Compensation Orders stating that he lacked sufficient information to do so.  Hence, any claims for compensation should be made via the civil courts.   Earlier this year, and before entering the guilty pleas, it was reported that Hall had transferred his interest in his home to his wife.

Mitigation available to Hall included his guilty pleas (albeit not at the earliest opportunity); his old age (on this see R v Heron [2009] EWCA Crim 94); and his extensive work over many years for charity.  Hall had brought much pleasure to millions as a local TV presenter in the North West and had displayed a genial personality, charm, bonhomie and wit.    Unfortunately, Hall had shown a brazen attitude when charged and he publicly protested his innocence thereby adding to the distress of victims.

This cannot have been an easy sentencing exercise and, with the greatest of respect, the judge has shown commendable balance in his remarks.  However, there are some calls for the Attorney-General to refer the sentence to the Court of Appeal on the basis that it may be unduly lenient - see Crown Prosecution Service - Unduly Lenient Sentences.   Generally, a sentence is unduly lenient:
'...where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.  In that connection, regard must of course be had to reported cases and in particular to the guidance given by this Court from time to time in the so-called guideline cases'.
(Attorney General's Reference No 4 of 1989 11 Cr. App. R. (S) 517 - Lord Lane CJ).
On that basis, the learned judge's sentence appears to be within the range of sentences which a judge could reasonable consider to be appropriate.  I suspect that Hall will now be a broken man.  In this country we prosecute alleged offenders and we sentence the guilty according to law but we should not seek to persecute them.

New Statesman - Is the outrage over Stuart Hall's sentence justified?

Addendum 1:

Attorney General's Office - Unduly Lenient Sentence Statistics - 5th July 2012

Addendum 2:

On 26th July, the Court of Appeal (Criminal Division) Lord JudgeCJ; Rafferty LJ and Macur J held that the sentencing was unduly lenient and increased Hall's overall sentence to 30 months imprisonment.
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Legal Aid: that was the week that was.

Save Justice -  The government is changing legal aid!  It will affect you!   This explains why.

The campaign against the government's proposals for Reforming legal aid continues so please consider signing the e-petition on Legal Aid.  This seeks to persuade the House of Commons that a debate is necessary about proposals which will put numerous firms of high street solicitors out of business, effectively remove your right to choose your solicitor, hand public money to a chosen few private suppliers of legal aid work, and devastate the independent criminal bar.  Even if you get legal aid and are acquitted, you may still have to pay a considerable contribution to your own defence.  This could lead to many DIY defendants: people who feel forced to defend themselves rather than expose their savings and home to a legal aid contribution.  Surely, the Secretary of State should not be simply allowed to sign this into law.  Parliament must do its job and hold him to account.

The consequences for those charged
are likely to be devastating and you never know when it might be you (e.g. a moment's lack of concentration when driving which has serious consequences) or a member of your family such as a young person out with friends who gets caught up in some event. Please note carefully: the government will always ensure that it is represented by the best lawyers.  No cuts are proposed to the prosecution side.


Excellent articles have appeared - The government's purge of legal aid crosses the border into authoritarianism and tyranny - Conservative Student 20th May - and  Natural justice faces a savage loss of innocence - Nick Cohen - 15th June 2013.  Please read them and call upon your MP to oppose the Grayling plans.  

The media has been riddled with seriously misleading articles about the earnings of legal aid lawyers.  An attempt to rectify this is at Mail on Sunday corrects daily's legal aid sums.   It is little use denying the fact that some lawyers obtain high fees from legal aid - a matter I covered in my post the other day - Yuppy, beady-eyed crowds; Fat Cats and Moggies!  Wednesday thoughts.   There are complex and lengthy cases where the most expert of lawyers are needed but, even in such Very High Cost Cases (VHCCs), the Bar Council has proposed an alternative funding scheme (Graduated Fee Scheme - or GFS) which would save the government money.  The fact remains that, for most lawyers practising in criminal legal aid, income is very low to moderate.  This was made very clear by one lawyer who simply cannot afford to continue - This is what is happening to honest hard working legal aid lawyers, and why.


During a radio programme, Lord McNally (Minister of State for Justice) was interviewed by Joshua Rozenberg.  McNally sought to defend the government's position but, in doing so, acted in a particularly petulant manner.  He came across as irritated that anyone should have the temerity to question the Ministry's proposals.  Of course, he has his position in the Lords for life and need never face the electorate to answer for anything.  A MUST read is the evisceration of Lord McNally by Guy Gozem QC - Lord McNally's balloons.

On 11th June, at the Justice Committee hearing  leading representatives of the legal profession explained the professional opposition to the Grayling proposals - especially those for Price Competitive Tendering (PCT).  It was made clear that the professions are willing to engage with government about saving money but they will not go along with a Blitzkrieg on access to justice and fair trial rights for the population.

Please stand up and be counted: sign the e-petition on Legal Aid.
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Murder: Crown Court at Preston ~ R v Cregan, Livesey, Gorman, Wilkinson, Ward and Ali

At the Crown Court (Preston) after a 77 day trial before Holroyde J and a jury, a sentence of imprisonment for life with a whole life term has been imposed on Dale Cregan.  He is guilty of four murders (including two Police Officers in September 2012), three attempted murders and causing an explosion.  Other defendants were also sentenced.  The judge's sentencing remarks are here.   Holroyde J stated that the defendants had shown 'no hint of remorse or compassion'.

Wilkinson was sentenced to life imprisonment for murder with a minimum term of 35 years.  Livesey and Gorman - life imprisonment for murder - minimum term 33 years.  Ward - life imprisonment for murder - minimum 33 years.  Ali - assisting an offender 7 years.

BBC News England 13th June 2013

Manchester Evening News - Full coverage: Cregan Trial




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Legal news in brief

Supreme Court UK
* Two cases concerned with prisoners and voting have been heard in the Supreme Court of the UK - R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent) and McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland).  See Prisoner Voting: Murderers challenge ban - BBC 10th June 2013.

* Three Supreme Court judgments were handed down on Tuesday 11th June: In the matter of B (A Child) - (Youtube); Petrodel Resources Ltd v Prest - (Youtube); Ust-Kamenogorsk - (Youtube).   For a view of the Petrodel case see the article by Chris Bryden (barrister at 4KBW) - Solicitors Journal - Prest: transfer of assets to corporate stuctures will be harder to challenge. 

*  The 8 year prison sentence imposed on Sarah Louise Catt has been reduced to three and a half years - The Guardian 12th June 2013.   Catt was sentenced for procuring a miscarriage - Offences against the Person Act 1861 s.58.  Law and Lawyers considered the case at the time and formed the view that the sentence was too high.

*  Michael Brewer's appeal against his 6 year sentence for 5 counts of indecent assault on Frances Andrade has been dismissed - Manchester Evening News 12th June.  This appeal
was devoid of merit.  For details of the case please see Special Measures in Criminal Proceedings 11th February 2013.  Andrade declined the offer of special measures.  Following the trial, she took her own life.

*  When is an 'expert' required in family proceedings?  On this, read Re H-L (A Child) [2013] EWCA Civ 655.

*  A new and FREE Handbook on ECHR and EU law on Asylum, Borders and Immigration has been published.  This is a cooperative project between the European Court of Human Rights and the Fundamental Rights Agency of the European Union.   The very idea that something should be published informing individuals about the law did not go down well in some quarters. As the UK Human Rights blog says -  In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.

*  As cuts to legal aid and access to justice bite ever deeper it must be a right and proper that material is made available to assist those in need in of the law.  The Child Poverty Action Group (CPAG) has published excellent material for a number of years.

*  Pursuing the proceeds of crime is a growth area in the modern legal system and, often, rightly so.  However, it can have some serious consequences for others.  There is an interesting, and legally important, Crown Prosecution Service application under Terrorism Act 2000 s23A - see BBC Manchester 12th June .  The Act provides for a court to order forfeiture of property which, at the time of specified offences, was in the possession or control of the convicted person.  However, where the property is a home for others, the convention rights of those others are engaged.

*  The government has published a Draft Consumer Rights Bill aimed at clarifying the law and reducing the number of separate pieces of legislation.   It's probably a good start but will it lead to people using mobile phones etc. to record what they say to traders?

*  Sentencing remarks - more and more are being published - Judiciary website.  This is a very welcome development bringing greater transparency about the sentencing process.

*  Legal Aid - the Senior Judiciary has responded to the Ministry of Justice consultation on Transforming Legal Aid.  Their response is discussed at Law Society Gazette 12th June.

*  Finally, let's remember fighter for civil rights in the USA Medgar Evers - killed in the USA on 12th June 1963. 
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Yuppy, beady-eyed crowds; Fat Cats and Moggies! Wednesday thoughts.

Updates 16th June *** Mail on Sunday corrects daily's legal aid sums *** So that league table of supposed greed is selective bunk.

*** Please sign the e-petition on Legal Aid

The government's purge of legal aid crosses the border into authoritarianism and tyranny - Conservative Student 20th May

Lord McNally's balloons - Guy Gozem QC

Natural justice faces a savage loss of innocence - Nick Cohen - 15th June 2013


Like many nations, the UK has been hit by the general economic crisis.  It is generally accepted that there is a need to save considerable sums of money and it is for government to identify ways in which the money might be saved.  Most areas of government are having to take cuts and the decisions needed are not easy.  We all wish to have good health care, fine schools and many other things including access to justice with legal aid for those who cannot afford it.

Having said this, we have a government maintaining a militaristic foreign policy which does not seem to baulk at replacing the ageing Trident programme - £100bn a considerable underestimate?    Neither does it seem to worry about the huge 'ring-fenced' overseas aid budget even though government borrowing remains high.  In addition, huge sums of money have been doled out to various private sector service providers - see Ministry of Justice contracts for 2012 .

It is in this financial context
that the Secretary of State and Lord Chancellor has put forward his plans - (the 'Grayling' plans) - for Reforming Legal Aid .  Lawyers are not closing their eyes to this context even though the Minister's proposals have resulted in serious opposition from the profession generally.

A number of articles have appeared in popular newspapers which seek to lampoon all lawyers as 'fat cats' milking the public purse - for example, Quentin Letts - Daily Mail 12th June - The lawyers were out in force, a yuppy, beady-eyed crowd.  Letts, in this seriously misleading article, referred to the Justice Committee hearing on 11th June at which the committee took evidence about the Grayling proposals and, especially, Price Competitive Tendering (or PCT).  The committee hearing may be viewed via Parliament TV and if you are seriously interested in this subject you should watch as senior members of the legal profession explain the well-considered objections of the profession to the government's plans.  Their presentation is far from 'hysterical' (as Lord McNally, in conversation with Joshua Rozenberg on BBC4's Law in Action 11th June, described the reaction of many lawyers).

For my part, I would rather my country be governed sensibly by Ministers who put forward well constructed proposals with evidence to support their plans.  The Grayling proposals are neither well-constructed nor supported by adequate evidence.  There is some dispute as to the number of responses received by the Ministry of Justice but it is perhaps in the region of 13000.  That figure is, in itself, very rare for government consultations about the law which usually attract, at the most, a few hundred responses.  This is not a case of every solicitor's firm 'pinging' in a 'furious letter' as Quentin Letts put it.  There are mostly detailed responses from numerous highly responsible bodies (and individuals) deeply concerned by the likely impact on justice for the average citizen of the Grayling proposals.

My blog has collated over 70 of these responses (HERE) and some link to many more.  The responses range over the whole range of the Ministry's proposals but possibly the most contentious proposal is Price Competitive Tendering (or PCT) which will seek to reduce from around 1600 to 400 the number of providers of criminal legal aid services.  Solicitors will be allocated to legally-aided defendants (removing true choice) and the main financial driver for such firms will be achievement of a large throughput of cases.  I would not expect lawyers working for such firms to be anything like high-earners and it will be the management of the firms which is creaming off the profits.  These businessmen will be the true Fat Cats.  (I am sure that we will see firms obtaining contracts and then their owners selling those businesses for big returns.  This has already happened in other areas such as Translation Services).   

The numerous responses are responsible even if highly critical.  Their good sense is to be contrasted to the petulant, ill-considered and unresearched comment in some of the daily tabloids with their undoubted anti-human rights, anti-anything-Europe, anti-lawyer (unless they need one) agenda.

IF the responses are properly read, they will be found to contain a wealth of constructive ideas as to where money could be saved.   For instance, Very High Cost Criminal Cases are a concern.  (Often, these cases are criminal cases of high complexity meriting the very best lawyers).  The Bar Council's response (para 53) suggests that the present scheme for such cases might be replaced by a Graduated Fee Scheme (GFS) - explained more fully in Annex 2 of their response.   It is therefore risible for Lord McNally to suggest that the legal profession is unwilling to engage in constructive dialogue with the Ministry about costs.  It is simply untrue.

Finally, let me deal with the FAT CATS.  The profession has to be more ready to acknowledge that they do exist.  Of course they exist and I say, be up front about them.  Some Queen's Counsel will earn well into a 6 figure income though much of this is frequently from privately funded work and, for some, a large element may well be from legal aid in very high cost cases (see VHCC Accreditation).   The legal profession is NOT opposing reform in this area as the Bar Council's response makes crystal clear.  Any reform will inevitably reduce lawyer's income but there will always be very difficult and lengthy cases and these merit suitable recognition in the fee structure given the work involved and the expertise required.  Also, let's be honest here, the government is not proposing any cuts to its own level of representation - particularly in those cases (such as prosecutions for terrorism) where it has a definite interest in the outcome.  Furthermore, the income of most lawyers is at a 'grey moggy' level and is, in a lot of instances, at a level where the lawyer himself would qualify financially for legal aid under the Grayling proposals!  The low financial returns for most legally-aided criminal work are driving lawyers out of either this type of work or even out of the profession - see This is what is happening to honest hard working legal aid lawyers, and why - Criminal Bar Association 12th June.

The outcome of the consultation (which closed on 4th June) is awaited.  It is to be hoped that the matter can be resolved by mutual co-operation but my fat cat is not holding his breath.


Everything that is wrong with PCT ........... please read !!  (Thanks to Criminal Bar Association)

Charon QC - This is what is happening to honest hard-working legal aid lawyers, and why

Justice Committee hearing on 11th June

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Act NOW to try to stop 'Justice' being only for the rich and powerful

*** Please sign the e-petition on Legal Aid - the aim is to try to persuade Parliament to debate the Ministry of Justice plans to slash legal aid.  Why should any Minister be allowed to seriously alter the rights of the British citizen just by stroke of his pen?

It beggars belief that any elected British government could put forward proposals so damaging to justice for the citizen as those in the Ministry of Justice consultation.

The Guardian - Sunday 9th June 2013 - Editorial:

"Last week, the government last week closed its hurried consultation on cuts to the £2bn legal aid budget. Few proposals have met with a more unified opposition among lawyers than the suggestion that £220m can be saved by introducing a system of price competitive tendering (PCT). This would see defendants deprived of the right to choose a defence lawyer and the number of criminal legal aid firms cut from 1,400 to 400.


The consultation paper by Lord McNally, Liberal Democrat leader in House of Lords and minister of state for justice, says: "Respondents are advised to have the overall fiscal context firmly in mind." That didn't stop the Bar Council, the Law Society, magistrates, thousands of high-street solicitors and hundreds of senior judges from attacking the proposals as the end to fair and equal justice. Even the government's own legal advisers, the 145 barristers who make up the attorney general's panel of counsel, claimed the plan would penalise the most vulnerable .

It is easy to characterise legal aid lawyers as feathering their nests by representing clients who are invariably guilty. But the truth is very different. Legal aid lawyers have suffered cuts over the last 15 years and frequently end up working long, unrewarded hours in a system that is already under severe strain. Often, it is the solicitor from one of the 1,000 firms that will disappear under these proposals who keeps the show on the road.

Justice secretary Chris Grayling and Lord McNally say PCT is the only way they can contribute to the £11.5bn budget cuts by 2015. Clearly, they have to make savings, yet it is likely that a system that awards contracts to firms that make the lowest bids will drive standards down. Under the suggested system, lawyers will be paid the same for a guilty plea as a not guilty plea. As the preparation for a trial will be unpaid the pressure for clients to plead guilty will be overwhelming.

That is unacceptable. The government needs to think again."

The Mail Online Sunday 9th June - The new face of British justice - "A haulage firm boss described as ‘slapdash’ and ‘incompetent’ by a High Court judge intends to become the new face of legal criminal defence work in the UK.

Under sweeping reforms driven by Justice Secretary Chris Grayling, government legal aid contracts worth millions of pounds are to be taken away from high street solicitors’ firms, and many handed to large companies instead."

Note also the views of former Lord Chancellor Lord MacKay of Clashfern.  His views are at the bottom of the Daily Mail article where he warns that the proposed legal aid cuts may cause serious damage to the justice system and increase wrongful convictions.  Mackay offers Mr Grayling a lifeline, saying that instead of railroading his plans through without parliamentary debate, he should ‘sit down’ with lawyers’ leaders to work out other means of saving the £220 million the Treasury wants to cut from his budget. One way, he said, would be to charge convicted defendants court costs, which could raise £120 million a year.

Please see Law and Lawyers - Links to Responses- where a considerable number of responses from official and professional bodies may be read.  These responses are by people with a wealth of experience of the law.  The responses are overwhelmingly against the government's proposals and they must not be ignored. It beggars belief that any elected British government could put forward proposals so damaging to justice for the citizen as those in the Ministry of Justice consultation.
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VAT ~ an interesting case in the First Tier Tribunal (Tax Chamber)

'Value Added Tax' is disliked by most end-of-the-line consumers but it is a major 'earner' for governments.  In the UK, it was introduced in 1973 following entry to the European Economic Communities (EEC).  From 4th January 2011, the coalition government increased the rate to 20%.   Some things (such as 'food') are 'zero-rated' so there is VAT in theory but not in practice and it is, technically speaking, open to government to impose a rate.  More details of VAT are at HM Revenue and Customs (HMRC).

From a business viewpoint, where the 'registration threshold' is exceeded, a supplier of goods or services has to register for VAT and, in other cases, a business may apply for voluntary registration.   Registered businesses account to HMRC for the difference between output and input VAT.  Consider a business (B).  Output VAT is that which B collects from sales of its business output.  Input VAT is that which B has to pay on its purchases (i.e. input to the business) - see HMRC - How VAT is charged and accounted for.  The difference between output and input has to be accounted for.  Clearly, if output exceeds input then B has to pay the balance to HMRC.  Conversely, a claim may be made to HMRC.

These arrangements often result in businesses
holding large sums of money pending payment to HMRC.  In many instances, the temptation to disappear with that money has proved too much to resist and it is hardly a surprise that various 'scams' have arisen to try to avoid payment - HMRC VAT fraud.  These are referred to as 'Missing Trader Intra-Community' fraud (MTIC fraud).

There are two types of MTIC fraud - acquisition and carousel - as well as one variant - contra trading.  Complexity is frequently added by fraudsters operating via networks of companies often across several international boundaries.  A key element in such frauds is that despatches of goods within the European Union (EU) between VAT registered businesses are not subject to VAT.  As a very simple example, trader A (in UK) buys from trader B (in France).  No VAT at this stage.  A then sells the goods to trader C (in UK) and A receives the VAT on that sale from C.  Trader A then disappears with the money.  This example would be an 'acquisition fraud'. 

The amounts of money involved can be massive.  In the Mobilx case [2010] EWCA Civ 517, Elias LJ began by stating:

'For many years, Her Majesty's Revenue and Customs (HMRC) have attempted to combat "missing trader intra-Community" VAT fraud. It is notorious that the trades in bulk mobile phone and computer chips are especially susceptible to that type of fraud. Latest published estimates (Measuring Tax Gaps, December 2009) disclose potential losses in 2005-2006 of up to £5.5 billion and in 2008-2009 of up to £2.5 billion.'

The staggering extent of loss due to fraud is considered in an article BDO Fraudtrack report reveals shocking cost of VAT fraud to UK.    See also HMRC's document 'Measuring Tax Gaps' published in 2012.  

A recent case in the First Tier Tribunal (Tax Chamber) illustrates some of the complexity:  CCA Distribution Ltd v Commissioners for HMRC [2013] UKFTT 253 (TC) - the decision is also available via Bailii.  The case was concerned with decisions of the Commissioners to deny to CCA the right to deduct input tax.  The Commissioners argued that certain deals were connected with fraudulent evasion of VAT and that CCA knew (or should have known) this.   For the periods of time in question, CCA's trading activity involved buying mobile phones from UK suppliers and exporting them to other European Union (EU) States.

The First Tier Tribunal - with its various Chambers - came into being as a result of the reorganisation of tribunals following implementation of the Leggatt Report (2001) by the Tribunals, Courts and Enforcement Act 2007.   The structure is explained at Lawobserver-Tribunals.     In the CCA case, the Tax Chamber comprised just two members: a judge and a lay member.  They disagreed as to whether CCA should be allowed to deduct the tax.  The tribunal judge exercised his casting vote to decide the case in CCA's favour.


In 2006, the European Court of Justice (now the Court of Justice of the EU) decided Axel Kittel v Belgian State where it was decided that a taxable person is not entitled to deduct input tax where "it is ascertained, having regard to objective factors, that the taxable person knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT"

Mobilx is the key English appellate decision on the interpretation of the words 'knew or should have known.'   The Court of Appeal considered the Axel Kittel judgment and held that in order for a taxable person to be deprived of the right to deduct input tax it had to be shown that he knew or should have known that his transaction WAS connected with fraudulent evasion of VAT.  It was not sufficient to show that the trader knew or should have known that it was more likely than not that his transaction was so connected.   However, a trader could be regarded as a participant and lose his right to deduct where he should have known that the only reasonable explanation for the circumstances in which a transaction took place was that it was connected with VAT fraud.

Returning then to the CCA case in the First Tier Tribunal.   The tribunal stated (para 386) that, as decided by Mobilx, it was enough to show that CCA knew or should have known that the only reasonable explanation of their dealings was that they were connected with fraud.  Given the complex factual background, the tribunal found this to be a borderline case (para 387) with the judge finding in favour of CCA's entitlement to deduct input tax whereas the second member came to the opposite view.  The judge's casting vote was then exercised to decide in favour of CCA.

A fuller explanation of the CCA case has been published by Mr James Pickup QC who represented CCA before the tribunal.  Pickup states:

' .....post Mobilx the Tribunals are moving away from a slavish examination of a trader’s due diligence and considering more the overview of the appellant’s trading practices, perhaps going back over a period of years, to determine the circumstances of its trading and whether in the appeal period there was any aspect of the trading which should have indicated that the “only reasonable explanation for the circumstances of the transaction was that it was connected with fraud”.

Other links:

Mobilx explained  - Maitland Chambers

Mobilx explained  - Monckton Chambers

Outlaw.com - Missing Trader Fraud

International Tax Review 28th August 2012 - Introduction of new measures to tackle VAT fraud

Accounting Evidence - 17 year sentence for VAT carousel fraud - R v Ravjani [2012] EWCA Crim 2519.
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