Sharp Practice (Best Defence series Book 3)

William McIntyre

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It may only be a sandbag against the flood of laws against free speech, but at least we can all feel free to have our say, no matter how outrageous, in the company of like-minded individuals, without fear of an imaginary, reasonable-person taking the hump. That was quick, and no need for amended legislation. Step in the Court of Appeal and a five bench decision August It's officially a crime to alarm and distress people who would be alarmed and distressed if they were there - even if they aren't.

It seems to come earlier every year. Top of the legal aid earnings list this year is Adams Whyte. Never mind how many offices they have, people they employ or cases they conduct - one million pounds - that is a lot of money.

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If you're a fire chief it's half your pension-pot. It's even less once you start paying the staff, the rent, the rates, the heat and lighting and the professional indemnity insurance.

Why don't we see headlines announcing that the rate of pay for advice and assistance in criminal legal aid cases has not increased in over twenty years? Here are some headline figures for you: Try getting your G.

How about some headlines about the public-funding of doctors? Better keep them sweet.

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People don't see lawyers that way. Legal aid is for defending criminals. Prosecutions, unlike ill-health, happen to other people; not to them. Criminal lawyers act for people who think like that every day of their working lives; people stunned and shocked to discover they may lose their livelihood or liberty and who, having seen the screaming headlines about Fat Cat Lawyers, expect a no-expense-spared Rolls Royce service.

Problem is, just like governments like to win wars, even other people's, they also like to win in court, and criminal lawyers are a nuisance when the State seeks to 'improve conviction rates' or introduce more types of criminal offence. The first people put to the wall by any totalitarian regime are the lawyers who seek to oppose it. We all know what happened to Hans Litten when he challenged Hitler.

That is what is happening in Scotland. No firing squads, but the insidious genocide of a profession. Just like our NHS is the envy of other nations, so, once, was our legal system, but the fact is that if we really want an effective criminal justice system, one that strives to ensure that no innocent person suffers, we have to pay for it, and in our adversarial system that means adequately funding the defence as well as the prosecution.

And those who have concerns about paying taxes to 'defend criminals', rest-assured; whatever the State is prepared to pay to defend its citizens, it will always pay a whole lot more to try and convict them. I was reminded again just how much of a one rule for some, one rule for others country we live in when listening to Radio 4 following the Nigella Lawson trial, oops, I mean the trial of her two assistants.

Geoffrey Robertson QC was on, advocating that when persons such as Ms Lawson were called as witnesses they should be allowed legal counsel to represent their interests in court while they give evidence. It's always the same when a toff gets in trouble, isn't it? Suddenly the establishment starts noticing flaws in the criminal justice system. Remember Ernest Saunders, the former CEO of Guinness, the only man to be cured of Alzheimer's, but not before the 'disease' led to his release from prison after 10 months of a five year sentence for insider trading?

Ernie, who was rolling in dosh, applied for legal aid, but when his big city lawyers saw how low the hourly rate was, they complained that he couldn't get a fair trial and the LA rates were increased just for him. Imagine if it hadn't been Big Nigella from Chelsea but Wee Nancy fae Falkirk who'd been in the witness box admitting to the use of class A drugs. Would the Prime Minister publicly state that he was on Team Nancy or would the UK's top Human Rights barrister come on the Today programme calling for a change in the law? No sooner had Wee Nancy given her evidence than the drug squad would be forming all sorts of reasonable suspicions, shortly before piling through her front door at five in the morning, hunting for tick-lists and leaving with any mobile phones they could find.

Her buroo money would be lifted too, just in case it was proceeds of crime, and, even if Nancy wasn't on Job Seekers Allowance which is approximately ten pounds less a week than the TV cookery goddess's kids get per day in pocket money , she soon would be once her employers found out she took drugs. No book deals or cookery programmes for her. Just a shove in the direction of the nearest DWP office and her benefits sanctioned for twenty six weeks because she'd been sacked for misconduct.

I'm sure it wasn't a pleasant experience for Nigella to be cross-examined on her past substance abuse, but I have an idea that for Wee Nancy the drug squad might have a few more awkward questions, which, with social workers waiting in the wings to take the weans into care, I suspect she'd be heavily encouraged to answer. Personally, I sit on the fence when it comes to the decriminalisation of drugs. On one hand, having dealt with plenty of them in my professional life, I can't think of any drug-user who, with hindsight, believes it was such a great idea.

Robust legal measures to prevent ruined lives seem sensible, and yet, notwithstanding all the public funds spent on drug enforcement, it seems anyone stupid enough to want to take them does so anyway. So while the law remains as it is, and the possession of class A drugs is prohibited, my one piece of advice to anyone who doesn't want to have their reputation tarnished, or be, as Ms Lawson put it, 'maliciously vilified' by having to admit to this illegal practice, is - don't take 'em.

Drag the man out of the house, give him a right good tanking, shove a service revolver in his mouth and suggest he mends his ways. Sort of puts a community pay-back order in the shade, doesn't it? Except, not many of the domestic cases that come before the courts involve pretty housewives whose brute of a husband has been slapping them around because they forgot to put ketchup on the table.

A great many centre around couples who, often after too much to drink, have had a high-volume slanging match. And yet, the Scottish Government's zero-tolerance policy, deals with even the most minor household disagreement as a major incident. While every year tens of thousands of 'proper' crimes: I'm a defence lawyer. Commercially, I'd be mad not to encourage more prosecutions, and, yet, where is the public interest in locking up a husband and wife on Christmas Eve, separating them from their child, just so that three days later the Sheriff can admonish him for shouting at her and grant the wife an absolute discharge for giving her husband a push?

That was Christmas ruined for one small boy and for a pair of tax-paying, first offenders, their eyes opened to the pettiness of the Scottish criminal justice system.

It's also one example from around eighteen similar cases at Falkirk Sheriff Court on 27th December, no doubt repeated across Scotland. Meantime, two of my clients with over fifty previous convictions between them, who were arrested on Christmas Eve on much more serious, but non-zero-tolerance, offences that made the headlines, were liberated on a police bail undertaking. Now, I've dealt with plenty of accused, men and woman, newsflash: However, wouldn't it be better to clamp down on plain-old-fashioned-everday violence too?

Why send the message that it's okay to punch a stranger? Punch some bloke in the street and expect a warning letter or fixed fine: The problem is that zero-tolerance policies are not compatible with the exercise of reasonable discretion, which in turn is why every household barney must now be categorised as domestic abuse and why police station cells are too full to house real criminals. How about big government butting out for a while and returning discretion to police officers and local prosecutors?

They're intelligent grown-ups, hey, some of them may know better how to do their jobs than the MSP. Some may even have partners of their own and have experience of domestic spats, how they tend to cool down just as fast as they heat up. Maybe these trained professionals can be trusted to recognise the bad from the the mad from the sad.

When it comes to men and women, one Christmas Eve unassembled Lego kit can be the difference between domestic bliss and a domestic abyss, a night in by yersels or a night in the cells. You can try and stamp-out domestic abuse, but you'll never eradicate family rows. Which is why we don't need a heavy-handed justice system that treats every family drama as a criminal crisis. What we need are trained, sensible people who can view a situation, assess what's happened and distinguish those who need to be locked up from those who should kiss and make up.

We have those people already. Let them do their jobs. I arrived at court the other morning to be met by an elderly woman in the foyer looking lost and confused. Failing memory comes with age, someone once said, I can't remember who, and it brings me onto the subject of corn-on-the-cob. In fact, so fond am I of those golden kernels of goodness, smothered in melting butter, steady, that last year I cast-off a lifetime of horticulture-avoidance to try and grow a crop of my own.

After all, some seeds, a few grow-bags, how hard could it be? Very, as it turned out. Now I am of the school that says a man should never buy a house that has a garden too big for his wife to cope with; however, the incumbent Mrs McIntyre was having none of it, and the job of chopping down the forest of unproductive, unsightly and highly-tangled vegetation was left entirely to me.

Fortunately, I have, over the years, accrued a host of tools and implements from various relatives who are probably still wondering what happened to them. The one I chose for the job of pruning my maize plantation was a lock-knife with a double-blade that could both cut and saw. Whatever, it made short work of the woody-stalks and after twenty minutes hard labour, the brown wheely-bin was full and I was off in search of Saturday morning breakfast.

Transporting a knife from A to B e.

What if I was stopped and searched? The police did a lot of that: The knife would be found and I, as a zero-tolerance case, would have a weekend in the cells and a Sheriff and Jury trial to look forward to. Walking briskly, running was way too suspicious I made my way home, shades of the prison house beginning to close. And then I thought: For although the Lord Advocate has introduced a zero-tolerance policy for those found with knives, at least the intervention of the Cabinet Minister for Justice thwarted Labour's plan to impose a six month minimum mandatory prison sentence.

A measure only narrowly avoided by a vote against. I understand the need to clamp down on knife crime, but why are some politicians so keen on zero-tolerance policies and mandatory sentences? What's wrong with allowing Procurators Fiscal, Sheriffs and Judges to distinguish blade-wielding thugs out looking for blood from forgetful, reluctant-gardeners who just want a bacon roll? The combination of zero-tolerance policies and mandatory sentences is the criminal justice equivalent of haud-it and dod-it. If the only tool you give the judiciary is a hammer, then every one the local prosecutor is forced by Crown Office to put in the dock is a nail that must be soundly bashed, no matter the mitigation.

No matter, thanks to Mr MacAskill, as I write these words, safe at home, my dabs long wiped from the knife in quo, shower-time no longer holds the same fear for me. With my gardening experience I must be an excellent candidate for unpaid community work. I can even bring my own equipment. If I can remember what I did with it. I like women, in fact I married one, and because she is outnumbered five to one in the gender stakes, I ensure equality reigns within the McIntyre household by occasionally relinquishing proprietary rights to the remote and watching movies in which for a change it is the women who are really smart and the men who are stupid; most of which cinema, I can't help but think, could be improved by the introduction of some Aliens, a few explosions or a really-good car chase.

One such film, Sliding Doors, came to mind when I was advising a client charged with assault. Sliding Doors, as some will know, follows, in parallel universes, the different routes the life of Gwyneth Paltrow's character takes depending on whether or not she makes a certain decision. What brought the film to mind was that my client had a decision to make: Those not overly familiar with criminal defence might be thinking, why not just ask him if he is guilty and if he says, 'yes I am,' then plead guilty?

And that's presumably what Parliament had in mind too when introducing s. A case which sparked a series of arithmetical decisions, most of which are in my TBR pile, but I understand are along the lines of: There are times when an early plea of guilty, as a sign of contrition or to prevent a child witness testifying, may be regarded as mitigation, and that was always so, long before section or Mr DuPlooy; however there is a problem.

What if an accused doesn't know if he's guilty? What if his lawyer doesn't know either? In the sentencing-discount stakes he's at a distinct disadvantage compared to his bang-to-rights brethren. My client was a chef. On Christmas Day his wife told him to come straight home after work as her sister and partner were coming for dinner and the meal would be postponed until later in the day so that they could all dine together. Which would have all been fine had not drinks and nibbles been laid on for the staff at the hotel where my client worked.

He stayed behind for a while, just to be sociable, returning home to find that the Queen was already writing next year's speech, his wife and guests gnawing at table-legs and the Christmas turkey drying-out faster than a jaikey with no giro. To make matters worse, my chap then stated he wasn't actually all that hungry. Retreating to the livingroom, slightly ahead of a of a hail of Christmas crockery, my client was joined by his sister-in-law's partner, a man who, judging by the way he later filled the witness box, wasn't used to being kept waiting at meal times.

They argued and my client ended up on the floor with one very large, angry man sitting astride him playing punch-the-face. It was at this stage in proceedings that the alleged offence was committed. My client reached out a hand, found a long-stemmed wine glass, jabbed it into the top of his attacker's head, dragged it down his face and for good measure stabbed the stem into his chest, just above the collarbone.

They say that in war it's the victors who write history; however, in fights it's the victor who gets prosecuted, and this was no split-points decision. My client was left with two black-eyes, but his opponent was left with more stitches than the Bayeaux tapestry and the doctors were left amazed at how the stem of the glass hadn't severed any major blood vessels. As a means of defence, my client's actions had certainly been highly effective, but did they meet the legal requirements for self-defence or had the force used amounted to cruel excess?

Was he guilty or not guilty? As Harry Hill would say, 'there's only one way to find out. His subsequent acquittal after trial meant that, in hindsight, my client had made the correct decision to plead not guilty. But let's go back to that sliding doors moment when he was in my office weighing up his options, and when, as his lawyer, I'd been duty bound to advise him of the worst case scenario and the benefits of an early plea. Let's look at each:. In the worst case universe he goes to trial, is found guilty of an assault to severe injury, permanent disfigurement and endangerment of life.

He is sentenced to the maximum five years imprisonment. With remission of one-third on periods of four years or more he ends up doing three years four months. In the parallel universe he pleads guilty. The same Sheriff who would have imposed a five year sentence, gives a one-third discount for the early plea.

Sixty months becomes forty and one-half remission turns that into one year eight months. Faced with that advice, who could have blamed him from entering a guilty plea? Guilt or innocence; it's not always cut and dried. For all sorts of reasons, sometimes justice requires a judge or jury to decide which it is after a proper test of the evidence. I remember when a solicitor could be trusted not to be a criminal; however, little by little, more and more intrusive security requirements have been introduced for prison visits.

First there were no checks. Then it was just a quick wave of a handheld metal-detector. Then we had to flash a Law Society ID card — that was a fiver a year you never saw again. Then came the walk-through metal-detectors and airport style baggage scanners. Now, for me, the temperature of the water has become too warm to be comfortable. On my last visit to a client in prison, I knew from experience to leave my mobile phone in the car and only take the paper files because my briefcase would set off a DEFCON 2 situation the moment it went through the scanner.

Inside the prison reception I was asked to remove my jacket and everything from my pockets, take off my shoes and my belt, my cufflinks and also my watch. Well, apparently, it might be a special watch, and while it was nice to be mistaken for James Bond, seriously, what could I possibly do with my ancient wind-up? Whip out a length of piano wire and garrotte my client?

Or maybe use it to catch the sun and signal a daring helicopter escape? So, anyway, there I was standing in the foyer, with no idea of the time, holding my trousers up, cuffs flapping as I tried to untie my shoelaces, all the time wondering what kind of state my socks were in, when I was approached from the rear by a couple of cops dressed in black combat gear, like they were about to abseil down the front of the Whitehouse and save the President.

As it turned out, a big, black labrador would be delegated the sniffing and, just in case I had hopes of clinging to any remaining shred of self-respect, after that there would follow a search of my oral cavity. None of this, of course, would take place in private, but in full view of everybody and anybody who happened to be hanging around the prison reception area. Thereafter I was visited by a series of prison officials of increasing rank and better suits, each making it very clear that I would not be allowed to visit my client unless Rover was permitted to sniff my gentleman parts and some, as yet undesigned, individual had a look inside my mouth for nail files and rope ladders.

It was at this juncture I granted myself early release and returned, dignity almost intact, to the office. How did we get here as a profession? Why is it we are held in such low esteem that we are expected to undergo this kind of degrading treatment? I fully appreciate that that those visiting prisons in a private capacity should undergo security checks, but, yes, I do want preferential treatment. I don't think so. This frog is jumping out of the pot before the water starts to boil or, to be less analogical, before I hear the snap of a rubber glove and the lid unscrewing on a tub of Vaseline.

The plan must be submitted to SLAB if requested, and along with any request for sanction in relation to work or items of unusual or significant expenditure in the case referred to or relating to work covered by the plan. In consultation with counsel, the plan must include a process of determining priority items depending on their relevance to the client, task allocation to avoid either duplication of work or the perusal of material that is irrelevant, unnecessary or otherwise cannot be justified.

Sentimental old fool that I am, I carry about with me in my briefcase a page from the transcript of an interview one of my clients had with the police when accused of murder.

It is a reminder of how important it is to prepare a case properly and how even a seemingly irrelevant adminicle of evidence can sometimes prove to be hugely important. When my client came to give evidence at his trial, it was put to him that he had met the deceased on a particular day and at a certain place. He denied this, whereupon he was presented with Crown production , being the transcript of his three hour interview with the police from several years previously, from which it was clear he had now changed his story.

It was the one shoogly plank in an otherwise unshakeable version of events given by the accused, and it was one the Crown intended to use to great advantage in order to attack his credibility. Fortunately, all those preparing the case had not only read the interview transcript, but also listened to the recording. Three people, solicitor, junior and senior counsel, had viewed the DVD of the interview and read the transcript. Only one spotted the erroneous insertion of a single full-stop in the transcript.

A dot that gave the reader entirely the opposite impression from what was actually stated at the interview. In all my years I had never prepared a case so thoroughly as that one. I would like to say I was the person who noticed the error in punctuation, but it was junior counsel, Lorraine Glancy. In another High Court case where police fabrication of evidence was alleged by the defence, there was written evidence from a Belgian undercover police officer. As none of the Scots lawyers was fluent in Walloon, an English translation was provided to us and a Belgian attorney was tasked with perusing the original.

As anyone who has ever prepared a defence will know, all evidence is potentially relevant; right down to the last full-stop, and the more people who can input their expertise the better. In both the above examples my client was acquitted, but, of course, not every case hinges on a punctuation error; nonetheless, the plan I intend to establish, maintain, but not amend, and which I am happy to submit to SLAB even at this early stage, is that: I will peruse all productions in every case in which I am instructed, and if counsel is also instructed I will expect them to do the same. Punctuation is especially in the news these days.

But poor punctuation can harm more than just feelings. Just last month the U.

Sharp Practice : #3 in the Best Defence Series

And misplaced punctuation can cost more than money. I carry about in my briefcase a page from the transcript of an interview one of my clients had with the police when accused of murder. It is a reminder of how bad punctuation nearly sent my client to prison on a life sentence. The allegation was that my client had orchestrated the abduction and subsequent murder of a business acquaintance. It was one of those cases where the police didn't use the evidence to seek a suspect, but found a suspect and tried to tailor some evidence to fit.

Ten years later, with the police no further forward, and because my client was the last person to admit seeing the deceased alive, he found himself standing trial in the High Court.

He had no prior knowledge that the deceased used that particular gym far less that he would be there at a certain time, so how would he know to arrange an abduction there? That was when he was presented with Crown Production - the transcript of his interview with the police several years previously. I met him at the gym. He did know the deceased frequented the gym.

He'd met him there only a week prior to the alleged abduction. It was the one shoogly pillar holding up an otherwise unshakeable version of events given by the accused. I could see my client was stunned and for the first time, uncertain, but he stuck to his earlier evidence that no matter what was in the interview transcript he had never previously met the deceased at the gym. That was when the time spent not only perusing the transcript of the interview, but listening to the recording, all three hours of it, paid off.

For when the defence insisted that the audio version be played to the jury, rather than rely on the more convenient written version they'd been provided with, it became obvious that whoever at Crown Office had typed the transcript had added a full stop where none should be. Rather than weaken his credibility, the fact that the accused had not tried to come up with another explanation, when initially faced with what was set down in black and white, only served to give his entire testimony the ring of truth and he was duly acquitted.

They say that the devil is in the detail. Sometimes there are angels waiting in the margins. At the Writer's Museum in Edinburgh, there is currently an exhibition to celebrate the 30th year of Ian Rankin's famous fictional detective, Rebus. One of the items on show is the first rejection letter the author received from a publisher.

I know if I'd had Mr Rankin's good fortune I'd be sending my rejecting-publishers a Christmas card from my yacht in the Caribbean every year. Not that I'm knocking publishers. They need to use their best judgement and sometimes they get it wrong but, seriously, Inspector Rebus?

There's wrong and there's really wrong. Speaking as someone who submitted his own book, Relatively Guilty, first in the Best Defence Series, to a number of publishers several years ago, it's the ones who don't give writers a fair crack of the whip that annoy me. One of my first submissions, was to a publisher whose guidelines refused electronic transmission. That's a lot of ink and paper for a 95k word book.

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