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If you have an issue you want to promote or a nagging complaint, maybe an idea or just something you want to get off your chest please feel free to email us with any blog or article or comment you want to appear here. The thoughts and ideas of police station reps are interesting and valuable. If you would like to post an article or respond to one that is already here please email.
• The Big Wedding - GDPR & Criminal Firms by Mat Fresco
• Inappropriate Adults by Dan McCurry
• The Tyranny of Tone by Dan McCurry
• No Comment Parliamentary Review by Matthew Fresco
 
 
 
  
  
  
 
THE BIG WEDDING
GDPR & CRIMINAL FIRMS

by Mat Fresco

22nd May 2018
 
Matthew Fresco of No Comment suggests you should ignore all those GDPR checklists.
Do nothing.
There’s been quite a bit of talk about the Royal Wedding but that is nothing compared to the chatter about GDPR. Like speculation over Prince Harry’s girlfriends it's been an incessant background hum for a couple of years.

But its nearly here. It's been getting louder and louder. GDPR becomes law on 25th May and its unavoidable. It's everywhere.

For criminal law firms I think it's too early to panic. In fact its too early to do anything. In principle criminal firms will suffer fewer risks than most law firms. They need to do less. Like the Royal Wedding it can be largely avoided but not wholly ignored.

All law firms are data controllers so you have to do some work. You need to be compliant. It is unavoidable so bang out the fun stuff now (and by fun I mean tedious). It's a bit like listening attentively to a neighbour who is excited about the precise colour of Meghan’s dress. Grin and bear it.

Get it onto paper. Its not hard. We are solicitors and writing stuff down is what we do. Some of it is management speak but so you will need ‘an audit map for the data flow’. No, I have no idea either, but we will find something on Google and get a 12-year old to do a nice picture of it.

Mostly its straight forward. Documenting the personal data you hold, where it came from, who you share it with and what you do with it. The client gets nicked and we get papers. Its hardly difficult in a Criminal Firm. It's easy to get compliant.

But its scary. Its scary because the fines are massive. But don’t be fooled by all those shock, horror headlines.

Basically GDPR says that where a breach occurs due to unlawful processing by a processor, the controller is jointly and severally liable for the damage if it, too, was in some way responsible, no matter how minor its responsibility.

But, and it's a very important but for Criminal Firms, if the controller is completely fault-free it can avoid liability for a breach caused by its processor. It goes both ways, so a processor can be liable for breaches caused by its controller.

Will Meghan and Harry’s marriage last? Will they divorce? Is Angela Merkel related to Meghan Markel? We don’t know. We have to wait. So do nothing. Keep quiet and look enigmatic. Most importantly do not rush into any contracts with suppliers.

Unlike Harry and Meghan Criminal Firms are not exotic or glamorous. No one loves a Criminal Firm. Unlike princes and actresses they have very few relationships. Criminal Firms have only a few suppliers to share data with. It's easier to manage and way less risky.

In theory the CPS, courts and police are all data controllers while the barristers, experts and police station reps the firms instruct are all data Processors.

Under GDPR both the controller and the processor are liable if either cocks it up. That is not really a problem though. Clearly the Police will cock it up, and they will leak left right and centre. It's going to happen, and we all know it.

These new regulations and laws are a bit of a fudge. The UK has some opt-outs and lets not even get started on Brexit. Whilst the police and courts will be exempt to an extent under GDPR firms in theory could be liable for a Police boo-boo. It will not happen.

The maximum fines are vast but Criminal Solicitors understand more than most that maximum sentences are rarely imposed.

Police budgets are measured in the billions while Criminal Law firms are mostly spit and sawdust operations scratching out a living on Legal Aid pennies. So stop stressing. You are not gong to be fined 4% of your global turnover.

You do not have a global anything.

Just get compliant and you will side step any liability. The police will be fined when there is a cock-up. No-one is going to fine a criminal firm for a police force that buggers it all up.

That leaves the other three people a firm does business with: the bar, reps and experts. Since they do not determine how personal data is processed its always been assumed that barristers, experts and police station reps are data processors.

The Bar does not agree.

Data processors will inevitably have to sign contracts to protect client data and indemnify the firms. Yet briefs are not on board. They are signing diddley. The Bar Council recently told them not to saying, 'for the avoidance of doubt, self-employed barristers are data controllers of their client’s data. They are not data processors’. The reasoning is clear. They are not 'sub-contractors on the solicitor’s behalf, merely processing data accordingly’. The Bar is arguing they are providers of ‘independent objective specialist advice and advocacy’. They are controllers and not processors as its up to the barrister to determine what information to obtain and process for the task.

Barristers want you to indemnify them.

Regulating the flow of personal data between controllers and processors is a core aim of the GDPR so it matters. The Bar have a point. Who is right? We will all have to wait and see how that plays out. Criminal firms should not be demanding contracts just yet.

Once again criminal firms should do next to nothing. If barristers are data controllers then the reps are data controllers too. So wait and lets see.

Finally, there is a crude issue we have to get out into the open. Criminal firms are not like other law firms. Like Meghan’s family there is an embarrassing home truth: criminal firms are the trailer trash of law.

Criminal firms have clients. Those clients are criminals.

GDPR says that individuals can claim compensation for damage suffered. It can be material or non-material. Even emotional distress caused by unlawful processing could lead to a claim in a civil suit.

But it is unlikely that your regular shoplifting own client is going to be able to argue any damage at all. You have to go to a civil court with clean hands not light fingers.

Convictions are a matter of public record. The details of cases are public right down to the defendants address and date of birth. Convictions, cautions and not guilty verdicts are all public. Criminal Law is done in the open air. It's at the very core of justice. Very little is actually secret. Naturally criminal firms will have to protect some vulnerable clients and victims, but we already do that.

So stop worrying about GDPR. You are not Allie McBeal. Demand all the assurances you want. Demand compliance from everyone. Codify all the obligations you need. But do not get into negotiations about indemnity until we know who is meant to indemnify who.

Happily discuss indemnity of course. But my view is that it's too early to sign anything. We need to see what happens in the market.

GDPR is eerily quiet on the issue of indemnity and so should you be. Criminal firms need to be like the Queen, sage, wise and quiet. Above it all and waiting.

The marriage of an American actress to a British Prince is a clash of cultures. Despite the cheap gags I do hope it will be a loving long-lasting union. They can make it work by taking the best bits from both worlds. It is common to see indemnities in US contracts, but their use is far less common here.

My view at the moment is that they may be needed but not yet. It's better to agree with suppliers and partners that an indemnity is not necessary. Remember you are a lawyer. You are not an expert in Contract Law but you that course module: you don’t need an indemnity clause to recover damages. Thats what GDPR is there for. Get your suppliers confirm compliance first.

Its easy to get lost in GDPR so keep a copy of article 6.1 close at hand in case of panic. GDPR is there to stop annoying calls from double glazing companies. Article 6.1 says you should not panic. It says do nothing. There are 6 legitimate reasons to process data and you can tick all the boxes.

So the answer to most problems with GDPR is, we don’t know. But let's not worry. GDPR has not yet come into force.

Let's see what happens. Like a royal wedding its a great deal of fuss but does not really change much for criminal firms.

 
Dan McCurryMat Fresco is the founder of No Comment the largest police station agency in the country. He is a keen amateur web designer, programmer and photographer with boundless enthusiasm but a distinct lack of talent. Mat is a duty solicitor with years of advocacy experience but his passion is for defending clients prior to charge. He lives in a Hertfordshire with numerous rabbits, dogs and goldfish as well as four children.
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INAPPROPRIATE ADULTS
by Dan McCurry

26th February 2018
 
The arrangements for Appropriate Adults are in need of reform as they often do more harm than good to vulnerable defendants.
When I trained up in this business, I used a book by Ed Cape on police station defence. He warned that for a solicitor to fulfil the role of appropriate adult would be a conflict of interest, unless the solicitor also wants to ensure the juvenile gets home safely. This is ridiculous but the parliamentary committee tasked with updating the codes of Practice took this onboard and made it law, so the police are forced to continue with the procedure.

The problem is that the purpose of the law, as it stands, is not to reassure parents or to promote the bond between parent and child, but to ensure that the police are not being abusive to the vulnerable. The parents are treated as a nothing more than a tool to allow compliance. They are dragged to the station for the Rights and Entitlements, then made to wait or come back again for the interview, and often are required just to bail the young person, even if it is a 17 year who lives independently.

When a parent is unwilling to attend any 'suitable' person can be used. I've known officers to stand outside on the street looking for volunteers. These volunteers have no skills or experience but just stand passively to one side while the procedure takes place.

There is no conflict as far as the solicitor is concerned. We are concerned with the basic as well as the legal rights of the detainee. However the need of compliance with this law is a constant source of conflict. Although intended to be in the interests of the young and vulnerable, it is quite common for the suspect to be held in custody for several extra hours, sometimes overnight, due to the lack of an available appropriate adult. How is this in the interests of a juvenile or a person with a mental health issue? This abuse continues to be applied even when it becomes obvious that the detained person is completely innocent.

Parents of a persistent offender become so frustrated with the system that they quickly learn that they can refuse to attend the police station and have a social worker fulfil do the job. Surely we should be encouraging the bond between parent and child not undoing it.

I cannot think of a good reason why a 17 year old cannot be bailed due to the lack of an unqualified total stranger to stand passively present while they release him from custody. The idea that the youngster should remain in a cell because there is no passive unqualified stranger is a human rights abuse in itself.

The role of the solicitor is to defend both the legal and basic rights of the client. It is important to have a parent present if the parent wants to be there, or a mental health nurse or a care worker who knows the youngster. But it's an abuse to refuse to conduct an interview when a solicitor is ready and available but no parent wants to attend. In fact, the lack of an appropriate adult should be the reason to call a solicitor.

To have a solicitor and a professional appropriate adult is often confusing to the vulnerable person, as they have to have consultations about their well being twice over.

Law and procedure should consider the interests of the parent, and seek to increase not diminish their bond.

The law should not consider the solicitor's role as a conflict.

Never should a vulnerable person be locked up due to the lack of a passive total stranger with no qualification.

The codes of Practice must be updated.
 
Dan McCurryDan McCurry is a police station rep with over a decade of experience. Prior to that he was a BBC picture editor working on the 24 hour news channel. Dan is an active political campaigner and has become well known for his photographs of election campaigns. But he is perhaps best known as a writer; he is prolific and contributes articles to numerous publications, blogs and institutions including The Smith Institute and the New Statesman.
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THE TYRANNY OF TONE
by Dan McCurry

8th March 2018
 
Improving your bedside manner could have a dramtic effect on your bottom line. Client Care sounds easy but its more of an art than a science.
The reason why doctors make such effort to get their client care right is that they fear being sued, and malpractice is not the main reason that patients go to court. When a doctor makes a mistake, the patient is nearly forgiving if they like the doctor. If they feel they were not listened to, or treated arrogantly, they will sue. For this reason there has been a lot of academic study done, in order to help doctors get their client care right.

Solicitors don't often get sued. We just don't get called again and that is crucial to a firm's survival. So the lessons we can learn from these academic studies should be just as useful for our business.

Medical negligence lawyers say that what comes up time and time again in medical malpractice cases is that they were rushed ignored or treated poorly. One lawyer said, In all my years in this business I have never had a potential client walk in and say, 'I really like this doctor and I feel terrible about doing this, but I want to sue him' (Malcolm Gladwell, Blink).

One helpful way of orientating clients into the consultation, and away from the thoughts and questions that have been haunting them in their cell, is to give them a clear road map of the consultation. This is helpful way of making clients feel at ease with what is happening and less anxious to go straight to the question that has been occupying them, such as "When do I get out of here?"

Following the intros, a good plan is thus:
  1. I will explain the law and procedure.
  2. After that I will tell you the allegation and evidence.
  3. Then I'll ask for your side.
  4. Next we will decide whether you will answers question in the interview.
  5. Finally I'll ask you if you have any questions.
One academic study of the doctors took a recording of patient consultations and distorted the voices so that the listener couldn't hear the words but could follow the tone of voice. The listeners were very accurate at identifying which doctors had received complaints and which ones had not.

The most common reason for the tone being wrong was that the doctor was being dominant. People always want respect. If they don't get it, they fill with resentment. So being a good listener is vital, but this doesn't mean that a lawyer should be passive, it just means that the lawyer should avoid coming across as unsympathetic.

Clients are often difficult and will relay lengthy irrelevant stories if not pulled up short. For example in a domestic violence matter the client is often so emotional that he will want to persuade lawyer that the argument was his partners fault. The question for the lawyer is whether he hit the partner, rather than whose turn it was to do the washing up or whether she's a useless mother.

The lawyer needs to avoid excessively wasting time. Client care does not equate with losing control of the consultation. If necessary the lawyer should remind the client that the solicitor is not a friend but an advisor, which is more much important at this moment in time.

As legal aid practitioners we cannot control how many duty cases we are assigned, but we can increase the proportion of our clients who request us again or refer us to their friends. Getting the right balance between our tone and our professionalism should require just as much commitment as giving the right advice.
 
Dan McCurryDan McCurry is a police station rep with over a decade of experience. Prior to that he was a BBC picture editor working on the 24 hour news channel. Dan is an active political campaigner and has become well known for his photographs of election campaigns. But he is perhaps best known as a writer; he is prolific and contributes articles to numerous publications, blogs and institutions including The Smith Institute and the New Statesman.
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PARLIAMENTARY REVIEW
by Mat Fresco

8th March 2018
 
The Parliamentary Review is a govenment publication. Market leaders are invited to contribute articles highlighting best practice in their industry. This year No Comment, the biggest police station rep agency was honoured to be invited. This is the article but you can read the whole publication here: Parliamentary Review


Lawyers and politicians are as popular these days as the French royalty during the revolution. But that perception is hardly fair. Marie Antoinette is famous for saying, ‘Let them eat cake’ but she probably never said it.

It does not really matter if she said it or not, since it encapsulates an idea. As the grey huddled masses of Paris crowded at the gates demanding food, she was aloof. The poor had been ignored, their leaders were out of touch. To complete the revolution the last queen of France would have to lose her head.

Similarly, we all know lawyers are ‘Fat Cats’ doling out only as much justice as their clients can afford. Bad lawyers make cases drag on for years, good lawyers make them last even longer. As with poor headless Marie Antoinette, it’s not true, or at least it’s not true of all lawyers.

‘Fat Cat’ lawyers do not practice criminal law. No Comment is my company. It’s an agency providing criminal law firms with qualified staff. We represent people when they are arrested. We advise clients in police interviews. Criminal solicitors are mostly trying to help people who are in trouble. We often help the poorest in our society. Indeed, half the prison population has the reading age of an average 11-year-old.

If a solicitor has a client at any police station anywhere in England or Wales he or she can call us and we will dispatch a qualified solicitor within 45 minutes. We have more than 1,000 solicitors on our books. We cover interviews 24 hours a day, 365 days a year.

I started the business seven years ago almost by accident. Years earlier, when I was training, my boss had clients all over the country. I started making lists of freelance solicitors who could help out. I rapidly became known as the guy who could organise cover at short notice. I got so many phone calls that I eventually set up No Comment. Word of mouth allowed us to grow rapidly.

If you are thinking that you will never need our services, do not be so sure. According to a 2002 Home Office report, almost a third of men had a criminal conviction by the age of 30.

No Comment makes sure defendants are treated fairly. We police the police. When the state comes to take you away, we ensure they do it lawfully. We do not tell defendants what to say; we only tell them what the law says. We work with dedicated professionals who strive to do their very best for all clients. Defending people, even guilty people, is important.

The No Comment office is a bit like a newsroom at times and reminds me of my Dad, who was a photographer on the Daily Mirror, rushing around in the glory days of Fleet Street. Our phones only ring when something bad happens. It’s never good news. If we are involved, it’s murder, rape or just a punch-up. We only have 45 minutes to get to a police station so it can be exhilarating. We send solicitors to cover jobs at any time of the day or night. I can be like an angry news editor barking orders, although I shout about Legal Aid forms instead of scoops… but you get the idea.

Despite my flippant tone, it’s a serious business but a sense of humour makes it less stressful - hence the company name. Just days ago, a receptionist asked where I was calling from. I replied ‘No Comment’ and the phone was slammed down. It’s a name that makes most police officers smile.

The police have a tough job. They interview around one and a half million people a year. About 50% ask for a solicitor. Everyone has the right to a free, independent lawyer. But the lawyers are not paid at all well.

If you are paying tax then you are indirectly helping me with my mortgage. Thanks for that. But what a good deal you get!

Legal Aid rates for criminal law have not been increased since 1998. That’s nearly 20 years. Rates are not linked to inflation. There have been cuts too. I can think of no other industry or profession which has seen no increases for almost two decades. In my whole professional legal career I have never seen a rate rise.

It will come as no surprise to learn that newly-qualified lawyers are not turning to crime. Yes, there will always be cops and robbers so we are to some extent a recession-proof industry. Crime rates are complex but it is thought that the overall trend is down. Yet the police have recorded increases in crime too, particularly violent crime, in the last few years.

We can be more certain of how many cases solicitors covered. In the last decade there was a 27% drop in the number of police interviews attended by solicitors, in England and Wales. That might have a simple explanation: over the same period cuts to the police have resulted in a fall in the number of officers of around 20,000. Police budgets have been cut by £2.1 billion.

To be blunt, the fewer police officers we have the fewer arrests they make. That hits criminal law firms. In 2001 there were 3,500 firms practising criminal law. Now there are fewer than 1,400.

Baristers and solicitors are avoiding criminal law. As the money gets tighter, lawyers are leaving this branch of the profession. That is a big worry as, traditionally, our criminal judges are barristers with experience of criminal law.

As a business, No Comment faces interesting challenges. Our clients are the ever-dwindling ranks of criminal firms and their funding is ever-decreasing. As police numbers fall, the number of defendants at police stations decreases. Yet, somehow, No Comment has grown every year.

To grow we have had to be better, leaner and cheaper than the firms who instruct us. We are efficient, always looking for new ways to improve. We keep everything in-house so that we are in full control. We are paper-free. Our agents use an app which we wrote. Our app lets clients sign Legal Aid forms on the agent’s phone so the firm gets completed forms quickly. Client firms get reports and statistics immediately from our website, not slowly via the post. We grow by increasing market share.

I doubt we would have advised Marie Antoinette to answer ‘No Comment’ . She was probably innocent but didn’t get a fair trial. She was accused of a raft of trumped-up charges, including organising orgies, incest with her son, and treason. Her guilt was decided in advance by committee, and her lawyers were given only a day to prepare a defence. Criminal lawyers are here to ensure that never happens to you.
 
Dan McCurryMat Fresco is the founder of No Comment the largest police station agency in the country. He is a keen amateur web designer, programmer and photographer with boundless enthusiasm but a distinct lack of talent. Mat is a duty solicitor with years of advocacy experience but his passion is for defending clients prior to charge. He lives in a Hertfordshire with numerous rabbits, dogs and goldfish as well as four children.
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