A question a lawyer is often asked is, “How can you defend a client when you know he or she is guilty?” The answer to that, of course, is that you can only know if a client is guilty if he admits it, and if he does admit it, then, of course, you cannot run a ‘not guilty’ plea – you can plead in mitigation, bringing to the attention of the court any circumstances that you think will help the court in determining the sentence to pass, but you cannot put forward a defence to the charge, because such a defence would be spurious. However, what about a situation where your client’s instructions show that an offence has, or may have, been committed, but it is not the offence that he has been charged with?
The responsibility of a lawyer in this kind of situation differs as to whether the court appearance is in respect of a civil law claim in the civil courts or is in respect of a crime in the criminal courts.
In a civil case the lawyers for both parties are duty bound to give to the court each and every point of law (whether it is case law or statute law) that they have come across in their trial preparation, even though it is not beneficial to their client’s case. Both Barristers and Solicitors are ‘officers of the court’ and therefore have a duty not to mislead the court either directly or overtly. This principle is not quite the same as far as a criminal case is concerned; whereas they still must inform the court on all points of law (if a defence is a defence on a point of law) even though some may not benefit their client, a defence lawyer is not under any obligation to do the prosecution lawyer’s (or the CPS’s) job for him or her.
Let me give you two examples: when I first joined the firm of Solicitors in Wembley, N.W. London that I mentioned in Part 1 of this ‘series’, the firm did not have a criminal practice. Wembley was predominantly Asian in population, and the surrounding areas of Willesden, Harlesden and Neasden were predominantly West Indian – so we had very many Asian and West Indian clients. The Secretary to the Principal of the firm was West Indian and she had a teenage male relative who was always in trouble with the Police. She persuaded me to act for him on one of the occasions that he got into trouble – I cannot honestly remember the crime on which he was charged, but we did get him off, and as a result of this and his subsequent alleged nefarious activities in respect of which we were successful in defending him, we received more and more referrals from friends and acquaintances of his and his family, which resulted in the firm growing a sizeable criminal practice fairly quickly. One of the crimes for which he was charged on one occasion was ‘robbery’, a serious offence.
Robbery is an aggravated form of theft since it involves the use of force or threats of violence made prior to or during the theft. The offence is a statutory offence created by s. 8 of the Theft Act 1968, which provides that “A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”
The evidence against the client was that he was in a nightclub in Willesden/Harlesden and as he was leaving with some of his friends, he passed a girl sitting at a table with a group of others; the girl’s handbag was placed on the floor by her feet. As my client passed, he turned and picked up the handbag and went to go out of the club with it. The girl hadn’t realised that he had taken it, but one of her friends at the table told her, so she got up and ran after my client, grabbed his jacket and tried to get her handbag back, whereupon my client punched her and ran off with her bag. The girl fell to the ground, suffering lacerations to her face and bruising to her body when she fell. So – my client was charged with robbery under s. 8 of the Theft Act and came up for trial in No. 2 Court of the Old Bailey in London.
If you now reread the definition of ‘robbery’, you will see that it was quite clear that the Police charged him with the wrong offence and that whoever dealt with it at the DPP’s office (Director of Public Prosecutions – the forerunner of the CPS, the Crown Prosecutions Service) perpetrated the error. Why was it clear? Well, as I have stated, a person can be guilty of robbery only if he immediately before or at the time of doing so and in order to do so steals something from another by using force or putting the victim in fear of being subjected to force. This didn’t happen in my client’s scenario – he stole the handbag when he picked it up off the floor and made off with it; the violence took place after he had stolen it. The definition of theft (s. 1(1) of the Theft Act 1968) is “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” My client misappropriated the girl’s handbag as soon as he dishonestly picked it up, and by making off with it, he made clear that he had the intention of keeping it! So the actual theft contained no element of force or violence – so … no robbery! My client, of course, should have been charged with plain theft and also with assault (at the least), or possibly assault causing actual bodily harm (ABH) or possibly even assault causing grievous bodily harm (GBH).
But he wasn’t! So what should I have done – should I have said to the Police immediately he was charged or soon afterwards, “You’ve charged him with the wrong offences – if I were you, I would charge him with theft and assault if you want a conviction!” or should Counsel, at the Old Bailey, just before the indictment was read out to the client, have said to the Judge, “My Lord, the prosecution has made a mistake and is pursuing the defendant for the wrong crime – my client should really be charged with theft and assault!” No! A defence lawyer is under no obligation or duty to do the prosecution’s job for them. His or her duty is to provide the best defence for his/her client on the crime for which he has been charged. On the close of the prosecution case and following Counsel’s submission to the Judge that there was no case to answer, my client was acquitted. As the ‘double jeopardy’ rule was then in force (the rule that no person could be charged twice on the same set of facts), my client could not be recharged.
Another example comes from the time I was working for the same firm. It was in the late 1960s, when we were instructed by a gentleman called Sydney Carter, who was the HR Manager of a large factory in Hayes, Middlesex. As a result of his having to advise the younger element of the workforce there, especially those who were married or about to be married, regarding the difficulties in buying a house and raising a mortgage and all the costs involved, he became very interested in the whole aspect of Conveyancing. Having gone into it in great detail and read many books on the subject, he decided that Conveyancing was not very difficult to undertake and that he could do it himself for those employees who couldn’t afford Solicitors’ fees (then charged on a statutory scale of 1% of the purchase price of the house) – it was a time when every penny counted! So he started doing it and found that, indeed, it wasn’t overly difficult and that he could save his employees money. He then started doing it for persons other than his firm’s employees and then he started advertising that he would undertake Conveyancing for the public at large for only ½% of the purchase price (i.e. half as much as solicitors charged!). So successful was he that he resigned from his firm and started up a Company called ‘The Harrow House Owners’ Society’ (called that because he lived in Harrow). The business grew and grew and he took on more and more staff – his business plan was that his Conveyancing staff would be virtually independent; whereas they would work for the Society as the Society’s Agents, they would have (and would finance) their own offices but would receive 2/3 of the fee that the Society charged the client, i.e. 2/3 of ½% of the sale/purchase price of the house. By the time he became my client, he had 28 branch offices (and when I tell you that the Agent who worked in the Chelmsford Branch office earned over £50,000 pa in 1969 – worth ten times that amount in today’s money – you can see how big it all became).
Whilst all this was happening, the Law Society was, of course, foaming at the mouth, because according to them only Solicitors were, by law, able to undertake Conveyancing and therefore the Harrow House Owner’s Society (which by this time had changed its name to The National House Owners Society – NHOS) was breaking the law. They took this view because of s. 42 of The Solicitors Act 1957, which stated that “No one other than a Solicitor, Barrister or Notary Public may, for or in expectation of fee gain or reward, draw or prepare an instrument of Transfer or Conveyance.” They could do it for nothing but would be committing a criminal offence if they charged for it!! So, the Law Society brought prosecutions against three individual Agents of the NHOS, and it was at this time that the NHOS instructed my firm to act for them in connection with these prosecutions. As the individual Agents had prepared the respective Transfers and Conveyances in respect of which they were charged, they had no defences and so all they could do was to plead guilty, which they did. As the offences were only minor ‘summary’ offences (i.e. tried in the Magistrates Court with a maximum fine laid down by statute of £50), they paid their fines and carried on as usual! In the following conferences I had with the NHOS, it was decided that, to get around the Act, the Society’s literature should make it clear that the Society would make no charge to a client for the preparation of a deed of Transfer or Conveyance – it would be done for nothing; they would only charge for the other work done in the Conveyancing transaction. The restriction did not, of course, apply on the sale of a house (rather than a purchase) – the Solicitors Act could not be contravened in such a transaction because, as you, of course, know, the Transfer or Conveyance is always prepared by the Purchaser’s lawyer/representative. This ‘ploy’, however, didn’t stop the Law Society, which brought further prosecutions and instructed a QC to represent them in the Magistrates Court, who, successfully, argued that the preparation of the Transfer or Conveyance could not be isolated from the Conveyancing transaction as a whole as it was an integral part of it and the Agent would only prepare the deed in expectation of the ‘gain’ that he would get from the fee for the rest of the transaction. The Law Society became extremely worried about the rise of ‘non-Solicitor’ conveyancing firms, as the NHOS was receiving a lot of publicity in the newspapers. As a result of this publicity, a Senior Law Lecturer in one of the Midlands universities who taught Land Law and Conveyancing and who, being a rank socialist, was against the Solicitors’ stated monopoly in the Conveyancing industry (and, indeed, was against lawyers in general!) contacted the NHOS, offering to draw and prepare all their Transfers and Conveyances for them completely free of charge to cover the NHOS Agents against any contravention of The Solicitors Act. This offer was gratefully accepted! However, this didn’t stop the Law Society, which subsequently took out Summonses in the Magistrates Court against two of the NHOS Agents – a Mrs Doris Green and a Mr David Ashford, together with the University Lecturer, for contravention of the Act. All three cases were heard together; the Law Society had a QC representing them and we were instructed for all three defendants, instructing Counsel for the hearing and entering ‘not guilty’ pleas for each of them. Now … of course, according to the logical interpretation of the Act, the two Agents could not possibly be guilty, as they plainly had not drawn or prepared the Transfers/Conveyances in question – the University Lecturer had done so. He, it was submitted, could not be guilty, because although he had drawn and prepared the deeds, he did it for absolutely nothing and received absolutely no fee or reward and made no gain out of it. Solid defences! However, remember we were in the Magistrates Court in front of lay magistrates (i.e. not legally qualified in any way) whose motto undoubtedly was “If in doubt, convict”, which they did!! They convicted all three defendants of preparing the deeds for fee gain or reward. So we appealed against the sentences to the Divisional Court of the Queen’s Bench Division, on a point of law, by way of ‘case stated’. (Do you remember what that is from your Diploma course? If not, look up your old notes; today, of course, the appeal would have been to the Administrative Court.) This was the first and only time I have ever been involved in such an appeal, and a very interesting procedure it was. The case eventually came on in the Divisional Court at the Royal Courts of Justice in The Strand, London, and was heard before three High Court Judges. A lot was at stake for the Law Society as, if it lost, it would demolish the Solicitors’ monopoly in Conveyancing and open the flood gates! So … surprise, surprise, the Law Society succeeded (conspiracy theorists amongst you will, perhaps, not be surprised!). Obviously Mrs Green and Mr Ashford were successful in their appeals because they just had not drawn or prepared the relevant deeds and so there was obviously no way in which they could possibly be guilty. The Law Lecturer was not so fortunate, though, and the Court unanimously found him guilty. Their judgment, based upon the Law Society’s QC’s submissions, was that although the Law Lecturer received absolutely nothing by way of fee gain or reward for preparing the Deeds, there was a benefit by way of fee gain or reward for the Agents for whom he had prepared the Deeds. Their gain and reward was the ability to conduct the Conveyancing transaction!! Now, look at the section of the Act and see if you think that’s what it means!! So, what the Court decided was that it matters not who obtains the fee gain or reward or what that fee gain or reward is – if the Deed is prepared by someone other than those allowed under the act, it is a criminal offence. Very interestingly, though, the Divisional Court, obiter, stated that anyone could carry out any and indeed all of the other numerous tasks in a Conveyancing transaction – the only prohibition related to Transfers and Conveyances.
So … back to the drawing board! The solution was obvious – the NHOS could survive only if they were able to have their Transfers and Conveyances drafted by either a Solicitor, Barrister or Notary, so this is what they did: they employed a Solicitor to do it (who, as you may imagine, was not the Law Society’s flavour of the month!). As I mentioned, the whole question of the Solicitors’ monopoly of Conveyancing became very prominent in the press and it came to a head when the MP Austin Mitchell had the opportunity to put forward a Private Member’s Bill in the House of Commons – he put forward a Bill “That the Solicitors’ Monopoly relating to Conveyancing be abolished”. I could write a book about this phase of Conveyancing history, but suffice to say that Austin Mitchell, the MP, allowed the Government (at their request) to take over the conduct of his Private Members Bill on undertaking to him that they would not withdraw it. It was an interesting period for me as I became very much involved in the passage of the Bill, from the outside, being invited, for example, to give talks to MPs on what Conveyancing was all about and what it involved (as very few MPs had any idea!!) and I also appeared on radio, with a Solicitor, in a discussion on the issues. The end result of all this was that the Government passed the Administration of Justice Act, 1985, which introduced the brand-new profession of Licensed Conveyancer under the Government-appointed Council of Licensed Conveyancers. By extending the prohibition under the 1974 Solicitors Act to also cover Agreements for the sale and purchase of land as well as instruments for the transfer of any legal estate in land, and extending the people authorised to do it to include Licensed Conveyancers, the possibility of a lay person carrying out Conveyancing as a business was effectively done away with. Note however, that anyone can still carry out a Conveyancing transaction, provided they make no charge whatsoever for doing so – so you can carry out a friend or relative’s conveyancing if you do it for nothing!!
I have digressed somewhat in introducing the second example of acting for someone who may have been guilty of an offence but had been charged with a different one. I was instructed to act for one of the NHOS Agents, who had been charged with the theft of £330 from the Inland Revenue. The alleged theft was in respect of the stamp duty payable in respect of a purchase of a property on behalf of a client, which, at that time, was 1% of the purchase price (‘stamp duty’ is now called ‘stamp duty land tax’ and is collected in an entirely different way than it used to be). His instructions to me were this:
He had acted for a Mr and Mrs Nice (not a real name – I cannot remember the real names of the parties) in connection with their sale of a property in Essex for £40,000. He also, with the agreement of both parties, agreed to act for the purchasers, Mr and Mrs Nasty (also a fictitious name!). Throughout the transaction, Mr Nasty was very difficult. He phoned up virtually every day and was very impolite – even rude at times. He also complained about the smallest thing. Mr and Mrs Nice hadn’t owned the Essex property for very long – only about a year – and the Agent had acted for them when they had purchased it. The transaction was eventually duly completed, and the Agent accounted to Mr and Mrs Nice for the purchase monies. The transaction took place at a time when the title to the property was unregistered at HM Land Registry and was not in an area of compulsory registration, which meant that the title to the property consisted of a bundle of individual Title Deeds.
Very shortly after the matter was completed, the Agent sent off the Deed of Conveyance (the Deed which vested the legal estate of property into the name of the Purchasers, Mr and Mrs Nasty) to the Inland Revenue to pay the necessary stamp duty (now commonly called land tax). The procedure for paying the stamp duty at that time, was that the Deed of Conveyance would be sent (or taken by hand), by the Agent, to the relevant Inland Revenue office together with a cheque for the amount of the stamp duty and together with a PD (Particulars Delivered) Form setting out particulars of the transaction which were (at that time) required by virtue of the provisions of The Finance Act 1931. The Deed of Conveyance would then be returned bearing on it (a) an impressed stamp showing that the requisite stamp duty had been paid and (b) a rubber-stamped confirmation (known as a PD stamp) showing that the Deed had been duly produced pursuant to the 1931 Finance Act. The Conveyance had to be stamped with the necessary stamp duty within one month from its date. If it wasn’t, the Deed was not invalid but it was unenforceable (i.e. the house would still belong to the purchasers but they could not use their Deed of Conveyance as proof of ownership) until such time as it had been duly stamped and any penalty paid for late stamping.
When the Deed of Conveyance came back from the Inland Revenue, the Agent started to schedule all the Title Deeds and Documents in order deliver them to Mr and Mrs Nasty, who had already enquired on several occasions when they would be sent to them. However, as he was doing this, the Agent could not find, in the file, the Deed of Conveyance for when Mr and Mrs Nice had purchased the property, i.e. the deed that vested the property in them when they purchased. It was missing. The Agent knew that it was in his possession, because he certainly had it when he drafted the Contract for Sale between Mr and Mrs Nice and Mr and Mrs Nasty, and he assumed, therefore, that it had been misplaced somewhere. He asked his Secretary if she would have a look through all the files to see if she could find it. After a few days she reported back that she couldn’t find it anywhere. The Agent knew, however, that it must be somewhere.
Mr and Mrs Nasty were getting annoyed that they hadn’t been sent their Title Deeds and kept phoning the Agent up. He told them a ‘white lie’ in order to stall for time, saying that their Conveyance was still with the Inland Revenue. He himself went through all his current and past files but could not find the missing Deed. The trouble was that it could be anywhere. There is so much paper in any Conveyancer’s office (not so much nowadays as there was then, as there were no computers at the time I am writing about), and the missing Deed could, inadvertently, have been put with someone else’s Deeds or in an old file that had been filed away or, indeed, anywhere. He asked his General Office Clerk to drop everything and look absolutely everywhere for the missing deed. This took up some time but was done without any success. The Agent was very worried – even more so because Mr and Mrs Nasty were getting even nastier and were not prepared to accept any more of his excuses. They said that they were going to call in at the end of the week and if the Deeds were not there for them to collect, there would be trouble.
The Agent was very worried about it all and dreaded to think what the Nasty’s would say, or do, if he stalled them any longer. Then he had a plan! He knew that the missing Deed would come to light sometime, as it must be in the office somewhere – it was only a matter of time – so he would make a replica of it to put with the rest of the Title Deeds. He therefore typed out an engrossment (proper copy on engrossment paper – unheard of these days!) from a copy that was in his old file, so that it looked like an original, and he signed it so that it looked as though the original parties to it had signed it.
When Mr and Mrs Nice had purchased the property, the price was £33,000, which meant that their original Conveyance had been stamped with stamp duty amounting to the sum of £330, i.e. 1% of the purchase price (which was the relevant duty at the time). The Agent knew that he could not duplicate the embossed ‘stamp duty’ stamp, so he decided, when he typed the ‘replica’ Deed of Conveyance, to show a purchase price on it of only £30,000 (as, at that time, sales of £30,000 or less did not attract any stamp duty) instead of the proper £33,000.
He bought a ‘do it yourself’ rubber stamp-making kit and made up a rubber stamp to look like the PD stamp under the Finance Act 1931. When he had finished, he was quite happy with the result. The replica Deed of Conveyance that he had prepared looked, to all intents and purposes, like an original. So, he put it with all the other Deeds and scheduled them up, and when Mr and Mrs Nasty came to his office on the Friday, he handed the Deeds over to them and breathed a sigh of relief. At least he had a bit of time in which the whole office could be turned upside down in order to find the missing original Deed. Once it came to light, he would then merely say that he had sent them the wrong Deed in error and give them the right one.
Alas! Mr and Mrs Nasty, being of a nasty suspicious nature (!), took the Title Deeds to a local firm of Solicitors to make sure that they were all OK. The Solicitors (unfortunately) were the same Solicitors who acted for the persons who sold the property to Mr and Mrs Nice when they had purchased it, and so the Solicitors saw, at once, that there was something wrong with the replica Conveyance and as a result the Solicitors and Mr and Mrs Nasty reported it to the Police. The Police, unbeknownst to the Agent, interviewed Mr and Mrs Nice, who, of course, confirmed that the replica Conveyance was not the proper one and also that the proper one should show a purchase price of £33,000 and should show stamp duty of £330, which they remitted to the Agent at the time they purchased, as having been paid.
As a result, the Agent was arrested, and because the Police did not believe his story and thought that he had prepared the replica Deed of Conveyance at the time that Mr and Mrs Nice had purchased the property so that he could keep the stamp duty that he had collected from them, he was subsequently charged with “theft‚ contrary to s.1 of the Theft Act 1968 in that he stole the sum of £330 belonging to the Inland Revenue”.
Because of the relatively small amount of money involved, the trial took place, summarily, in the Magistrates Court. Theft is what is called a ‘hybrid’ offence – sometimes called an ‘either/or’ offence because it can be tried either summarily in a Magistrates Court or upon indictment (pronounced ‘in-daie-t-ment) in the Crown Court, depending on its severity. Now, it is clear that the Police had charged him with the wrong offence. Look again at the definition of ‘theft’ in the early part of this article. One of the ingredients is that the defendant must have the intention of permanently depriving the owner of that alleged to have been stolen. The Agent’s accounts and bank statements clearly showed a payment of £330 to the Inland Revenue by cheque around the time of the purchase by Mr and Mrs Nice and evidence was given at the trial by the Agent’s Secretary and Office Clerk of the extensive time and effort taken to find the missing original Conveyance. Also the prosecution had made no effort to confirm from the Local Valuation Officer’s office as to their receipt of the original PD Form (which would have been sent to the Officer by the Inland Revenue Stamping Office). The prosecution did not call anyone from the Inland Revenue to prove that the sum of £330 had been stolen from them – all the prosecution relied upon was the replica Conveyance.
Now … I could have pointed all this out to the Police and the trial Prosecuting Solicitor and said to them: “You have charged my client with the wrong offence – he should have been charged with either forgery (“Making a false instrument in order that it may be used as genuine” – s. 1 of the Forgery and Counterfeiting Act 1981) or possibly “fraudulently making a false representation” or “obtaining an advantage by deception” – Theft Act 1968 … but it is not the defence lawyer’s role to do the prosecution’s job for them; only to defend the accused on the charge that has been brought against him.
So … what happened to the Agent? Well, as I said before, the motto of the Magistrates seems to be “If in doubt, convict!” – which they did, and fined my client £2,000. Interestingly, the Clerk to the Justices, who sits in front of the Bench, who is a qualified Solicitor or Barrister and whose job it is to instruct the Magistrates on the law, came up to me afterwards and said that he had advised the Magistrates not to convict, as my client was clearly, on the evidence, not guilty, but they had refused to follow his advice. He suggested that I should advise my client to appeal against the conviction, which I, of course, duly did. However, my client said No! He had had enough and wanted to get on with his life!