A Day in the Life of a Duty Solicitor
The Duty Solicitor, of which there are two at Leicester Magistrates’ Court every day, is available to represent any person charged with a criminal offence. There are certain cases that they cannot assist with but can generally help with most matters, as long as that person has not already had the previous service of the Duty Solicitor for the same offence on another occasion. This service is free of charge.
It is surprisingly common for a person charged with serious offences to arrive at Court without any legal representation. They may have little or no idea of what the procedure and process in front of them, or what may happen to them. Some persons arrive at Court remanded into custody by the police, and therefore their immediate bail or further remand into custody is also at issue.
The Duty Solicitor knows nothing about any of these cases, about the client, their likely pleas, the strength of the evidence, issues with admissibility of the evidence, or indeed anything until he or she receives the CPS disclosure pack. This is received upon request by e-mail. It is then the task of the Duty Solicitor to ‘consider; these papers – that is read the pack which generally runs up to 60 pages,(more for complex cases). They must then be advised upon all aspects of their case, from plea to sentence or plea to trial and likelihood of acquittal. They will be asked about any relevant background issues, and the duty solicitor must then act in the best interests of that client in Court.
There is a lot of time pressure on a duty solicitor as the principle of justice in the Magistrates Court is” swift and speedy”, but a good duty solicitor will resist pressure to be called into court until they are ready. This is in the best interests of the client, not how quickly the case can be called on.
One of our very experienced duty solicitors wrote about his recent experience at court on a recent Wednesday
“I arrive at Court at 9am.
09.10 Case One – charged with Excess Alcohol, racially aggravated behaviour against police, and assault on a police officer by pushing and spitting. He has never been in trouble before. He accepts all behaviour, apart from spitting which he says was accidental as he was restrained and put to the ground by the police and simply spat out dirt in his mouth. I advise him that he must enter guilty pleas, but on a basis, which excluded spitting. I advised him this may be accepted by Court given his lack of previous convictions. Whilst advising him taking background details of his work and family etc, I am given details of 2 more people who need to see me. I will need their papers, which will take around 15-20 minutes to receive.
Whilst waiting for them – the case in front of me, which is unrepresented, is sent to see Duty, as the accused does not know whether to plead guilty or no guilty to an offence of carrying a bladed instrument. Therefore, I now have 4 clients by 10.30am
I request the 4th set of papers.
I decide to see the 2nd client (Case 2) and get a head start on background issues. This is a ‘simple’ case which carries a minimum ban of 12 months and usually a fine. However, as I read the papers (again received only minutes previously), I discover that the client has a previous conviction for excess alcohol from 2013. A second offence within 10 years means a mandatory minimum three year disqualification. The client is shocked and unhappy. He had no idea that this was the case. The best I can do for him, is to try to keep the disqualification period to that mandatory minimum.
I go into court and am called on to deal with cases I and 2. Case 1 pleads guilty on the accepted basis (the Prosecutor opened the case without mentioning the alleged spit) and is sentenced to a 40 month disqualification and 200 hours of unpaid work. He is offered the Drink Drivers course by which he can get his disqualification period reduced by 25%.
I then go to see Case Three – the client sent to see the me in respect of possession of the knife. He is charged with Driving with Excess Alcohol. No licence and No insurance, plus the knife issue. He has never had a driving lesson but owns a car, had a few glasses of vodka and then went out to get something to eat. He too has no previous convictions. He would be disqualified and receive a fine for these, which are fully admitted. However ,the knife is a different issue. Sentence guidelines for possession of a knife in a public place, even if not brandished or used in a threatening manner, is 6 months imprisonment. The law allows, however, a folding pocket-knife with a blade under 3 inches. The Prosecution papers do not carry a statement in regard of the knife, but there are two photos with measurements. The knife is sheathed in a credit card size pouch. This is 3” long in total. The blade, my client informs me, is the shadow (black and white reproduction) on the left side of the card, so this would be about an inch, inch and a half, maybe. The second photo shows the knife with handle and blade and a ruler beneath and this confirms the blade is less than 2”. It is a non-lockable folding knife. I therefore advise my client to enter a not guilty plea. I then discuss this with the Prosecutor. It is suggested that pleas are entered to the driving offences and the knife matter is adjourned for 2 weeks. If indeed it is non-lockable and folding, then the Crown will withdraw the charge. If not then a guilty plea would be likely.
I am unable to see Case 4, as I am immediately called to the cells. I visited the cells at 9.30am and the ‘in custody’s’ were still being booked in as they arrived from the police stations. There were 16 in custody, and 8 had been booked in. None at that point had asked for duty. However, I was requested to see Case 5, a female who had failed to come to Court a week ago, on charges of relatively low level assault on police officers, and racial abuse of another, after a domestic incident. The female told me of a long history of childhood issues, recent bereavement, trauma, suicide attempts and of how she and her GP and the Social Services were trying to address these issues, including social isolation by moving her to a smaller home in another area. She had limited previous convictions. I was able to confidently assure her that she was not going to prison. She decided to plead guilty to all matters, which was realistic given that she said she could not remember the incident as she had drunk a lot of alcohol. The police officers were, of course, on duty and sober. I advised that if she put the prosecution to proof and went to trial she was almost definitely going to be found guilty, and be liable for costs that she was unlikely to be able to pay.
I left her in the cells and was intent on going back upstairs to Case four,
However, I only got several feet in the cell area, when I was passed Case 6. A male had been arrested on the Warrant issued by the Court and so I saw him immediately. This young man was a diagnosed schizophrenic with a borderline personality disorder who had randomly assaulted 2 persons having self-medicated by drinking 15 pints, as his medication was not working. He told me that he had drunk to combat his feelings of anger and frustration and he was living on the streets. Since the incident he had re-engaged, been re-medicated and had been out of trouble for 6 months. He had also managed to build bridges allowing him to move back with his mother, who also suffered from mental health problems and was classed as vulnerable.
Duty Solicitors must prioritise representation of those already in custody. Therefore, I went straight to Court 1 to deal with Cases 4 and 5. It was now approaching 12.00.
I was able to deal with both cases 4 and 5 before the lunch break. Case 4. The female, was adjourned for a full probation report, given the complexity of her background issues and the need for a targeted probation response to address these issues. Therefore Case 4 did not take very long as all parties agreed on the need for an adjournment before sentence. She was given bail in the meantime.
Case 5 was immediately brought up to Court. Both the Court clerk, and the Prosecutor were present at the proceedings on Monday to which the male had failed to attend. The Magistrates read the probation report that had already been prepared about him and then I mitigated on his behalf. My job was to try to persuade the Court not to impose a further sentence of imprisonment (he had two previous convictions , both of which were serious enough to result in sentences of imprisonment).
It is a sad fact that the prisons are chock full of persons with serious mental health issues. This male had spent the previous weekend in hospital having heard voices. He was discharged on the Monday. He felt let down by the fact that Mental Health Services refuse to section him under the Mental Health Act. He stated that he would be unable to cope in prison. As is common, an almost daily occurrence, I was told that he would not survive prison, and so it was up to me to keep him out.
Many clients only want to hear that I will keep them out. They get frustrated and annoyed when I advise on the other alternatives and discuss ways of addressing them.
As I am mitigating, I am getting the impression that the Court have taken just enough of a liking to this young man with serious problems, despite the nasty frightening things he had done. He hadn’t done them ‘for long’ (i.e. not a ‘prolonged attack’), there were no weapons, it wasn’t premeditated. and the victims were not targeted due to their race, ethnicity or sexual orientation. He did not go to prison but instead he was given a Community Order so that he could get some help. That was a good result. It was the recommended proposal of the Probation report but still, the Court could easily have given him that same order under a suspended sentence.
Lunch – well 5 minutes break and 3 gulps of hot chocolate before the afternoon session began again – I had not yet seen Case 4 and I had been given a further case 7.
I saw Case 4 who had been waiting all morning, as the afternoon list began to arrive. There were, fortunately, no more persons in custody. Case 4 was another allegation of Excess Alcohol – however the client denied that has had been driving. The evidence of driving was a statement of a civilian witness who had contacted the police saying she had seen a car registered to the client being driven very slowly and missing lights, causing her to turn around and follow the suspect car for about half an hour. She called the police who found the suspect inside the car and he tested positive for alcohol in breath. The suspect said, however, that he had only been in the car 10 mins and had not driven it, leaving his house to get a wallet from the car. The witness said that nobody left or entered the car before the police arrived. I read through the pages of evidence to the client, advised him of the evidence and took his instructions. I advised him of likely sentence if convicted now or at trial, and the costs implications. He was unlikely to be granted legal aid for the trial. The client, knowing his options, and having listened to advice on evidence, stuck with his explanation that he was not driving.
He entered a not guilty plea and the matter was adjourned for trial. I took details of his defence witness. I called for the attendance of police witnesses who had attended and checked the engine and tyres of the vehicle allegedly driven. My client said that the officer had remarked that the engine was cold, and that he had smelled of BBQ. Neither of these observations were in the statement of the officer. If these issues, or any others, or evidence / witnesses, are not picked up at the first hearing and written on the Trial Preparation Form at the first hearing, then the prospects for a fair trial are prejudiced. This is the responsibility of the Duty Solicitor – not to miss a thing in these circumstances, Even when the usher is calling on you to be in another Court, or someone else is waiting to see you. I have to understand and process ALL the evidence and issues in an instant and be ready to argue the case with the Prosecutor and the Court.
All pre -trial issues are addressed by myself, the Prosecutor and the Clerk, without the Court or the suspect. Only after at least half an hour of discussion as to the length of examination in chief, cross examination, the reason for calling which witnesses etc, is the suspect called in. He pleads NG to Excess Alcohol and his case is adjourned for trial.
Case 7 is now waiting with surprising good grace. He was in the morning list, and has been waiting all day. It is now 3.30pm. I read his papers through with him. It is a case of low level abuse to a housing officer via voicemail. Admissions have been made at the police station. I read out the evidence and am asking pertinent questions. I am trying to obtain instructions on the offence itself, but the client cannot listen and constantly interrupts. He did this in court I am told when the Chair of the Court was talking to him. This is why he was advised to seek legal advice. Progress is slow and he is becoming frustrated with me because I need to keep him on point. The usher knocks on the door – it is the last case in court and they want to get it on. I am not finished. I ask for more time. If this were his first offence then he would be looking at a fine, but it is not. He has previous similar offences. He has a number of previous convictions for similar nuisance type offences. His last conviction was at Leicester Crown Court and he was given a 12 month suspended sentence and as he had committed this offence in the duration of that suspended sentence he was a serious risk of a prison sentence. He said his life was so chaotic that he had forgotten the suspended sentence, and continued to tell me of his medical and personal problems, all of which I noted. I decided that whatever happened I believed the Probation Service would need a report before sentence. I advised him that the sentence was likely to be sent to the Crown Court. This is exactly what the Court decided to do. In court the client continued to talk over me and address the court himself on matters that I had already covered.
Luckily for me, there were no new calls for Duty on the shorter afternoon list. So I was able to spend longer with the NG plea, Case 4, as it necessitated the time spent. This, however, does not stop the Court asking for my attendance and asking why I delaying the Court list!
End of Court duty 4.30pm as all other cases had representation – check with all Courts still running and check with cells that we haven’t missed anybody – then leave and have a coffee”