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Sketch by Isobel Williams, R v Jogee, www.isobelwilliams.blogspot.co.uk

In 20 plus years, a frequently asked question as a defence lawyer is what is it like to represent a client who you strongly suspect is guilty and is subsequently acquitted by the court.

However, what I have never been asked is what does it feel like to represent a client who you are convinced is innocent, who should not have even faced criminal proceedings in the first place, and secure an acquittal? In truth, that is the situation which is more regularly encountered (and which might be partly explained by the fact that the majority of defendants who are guilty plead guilty).

I was recently involved in such a case. The client , who I will call ‘Frank’ was 38 years of age, and of good character. He had lived in an estate in Hackney all his life, save for one year when he was taken into foster care. He was brought up by his mother and his father had no part in his life. Despite the fact that the majority of his friends were unemployed and frequently getting into trouble with the police, my client managed to find a job on leaving school and worked in IT for approximately 11 years. He was then made redundant in the recession of 2008. He then decided to attempt to fulfil his ambition of being an actor and film producer and formed his own company. An important part of his life became his local Baptist Church where he was a volunteer working with young people. Frank wanted to be a role model for his local community.

Rubber bullets
The circumstances of his arrest were as follows.

Frank boarded a London Midland train from Euston to Birmingham travelling to a theatre in Birmingham. He was there to do some filming work and was accompanied by another male and two females. My client anticipated that there would be a considerable period of time when he was not busy during the day in question and decided to take a rubber gun and knife that he had purchased from Amazon with him so that he could practice self defence moves that he was learning in his Krav Maga classes in London.

When he purchased the items, he was not given any warning about the use of them and in his mind they were merely training aids which could not be confused with genuine weapons. The group of four sat around a table and approximately 40 minutes into the journey my client started talking about his self-defence classes. He was trying to persuade two of his friends to join the classes and explained how useful he believed they were. An additional attraction was that the skills learnt could potentially be of some assistance in their acting careers.

Frank started discussing the disarming moves he had learnt. He attempted to demonstrate them with his mobile phone but his companion stated that she did not find it easy to follow his demonstration so he decided to get the rubber gun and knife out of his rucksack in order to demonstrate. This took place for approximately five minutes and the items were left on the table because his rucksack was full and he would have had to stand up in order to cram them back into the rucksack.

During the short demonstration, the ticket inspector came to check their tickets, at that time my client had the rubber gun in his hand. Jokes were exchanged but no advice was given about putting the item away. There was up to 70 fellow passengers in the same carriage and not one appeared to be alarmed or made any complaints.

However, one of those passengers alighted 40 minutes later and as he did so he noticed the rubber gun. He had previously noticed the rubber knife and formed the conclusion that disarming moves were being practised and demonstrated. When he saw the rubber gun, he was 99% sure that it was not genuine. He also noticed the tripod and camera and was of the opinion that the group may be part of a film crew. However, once on the platform, he mentioned his concern to a staff member who suggested that the police were contacted. He told the police that he was 99% sure that the rubber gun was not genuine and that the group were probably part of a film crew but left it as a matter for them to decide how they would like to respond.

The decision was taken to stop the train. Firearm officers were deployed.

The first my client knew of the presence of the police was when he saw a laser light being trained on the head of his female companion. The group were told to put their hands on their heads and the rubber gun was accidentally knocked onto the floor. Evidence was given by the firearms officer who was in overall control that he was very close to shooting the female in question.

It was accepted that my client was repeatedly shouting: ‘It’s not real, it’s rubber.’

All four persons were taken off the train and arrested and subsequently interviewed at the police station where they gave a similar version of events as to what had taken place. After interview, my client was offered a police caution. However, he did not feel that he had committed an offence and a police caution would have had a devastating impact on his life.

It would have affected his employment prospects and also prevented him from working in America where he felt as a struggling black artist that his opportunities may be improved. As importantly, he would no longer be able to carry out the youth work attached to his church if he had a police caution for being in possession of an imitation firearm.

Not in the public interest
Representations were made to the Crown that it was not in the public interest to proceed. Approximately 10 character references accompanied the letter of representations including those from his church confirming the commendable voluntary work he does and the fact that a caution or conviction would prevent him from continuing to do so. A decision was taken by the Crown Prosecution Service to proceed with this matter. It was difficult not to suspect that the fact that the Firearms Unit had been deployed together with a number of other officers and the train stopped in a rather dramatic fashion did not play a role in the Crown’s reluctance to discontinue proceedings.

The case took 20 months to come to trial. This had a detrimental impact upon my client’s health – by the time of his trial he was clearly suffering with depression. Frank was tearful and dispirited and failed to understand how he found himself in this position.

In a fully contested trial, the court heard evidence from the civilian witness that he was 99% sure that the gun was not real and he believed that the group were part of a film crew. It was accepted that the train inspector had spoken to the group and not given any advice. It was accepted that none of the 50 to 70 other passengers had been alarmed or made any complaints. In fact, the only person who had believed the item in question was genuine was a police officer standing at the back of a group of three who have had the poorest view of the rubber gun.

The defendant gave evidence that he did not believe he had committed a criminal offence. Frank did not believe that anyone would have mistaken the rubber gun as being genuine. It did not have a trigger; the barrel was solid at the muzzle; it was all one colour and it was made of rubber. He said that he had no idea that by getting the rubber gun and knife out in the circumstances which he did that he was potentially committing a criminal offence.

Frank explained how he was simply demonstrating moves that he had learnt at his self defence classes. He was accused by the prosecution of being arrogant and selfish and having no regard for his fellow passengers despite apologising for is behaviour in the police interview and expressing concern for his friends and those affected by his actions.

Common sense
It was successfully argued on behalf of the defendant that he had a reasonable excuse for being in possession of the gun because he had an innocent motive. The jury were asked to apply their common sense. I am happy to be able to confirm that they did. As he left court, the rubber knife and gun were returned to my client and he boarded the train to make his return journey to London.

A ‘reasonable excuse’ is not defined in law and clearly must be something which is considered in the particular facts of the case. It would be my argument that in this case when the defendant clearly had an innocent motive for being in possession of the items in question that common sense should have prevailed and the defendant should never have been charged with a criminal offence.

Instead, my client had an extremely distressing 20 months waiting for his trial to be listed in court. Two previous trials dates were not effective due to lack of court time and it was clear that this case was given an extremely low priority in terms of an early listing. During this time, my client’s health deteriorated, and his work and voluntary work were impacted upon. If he had been convicted, the likelihood was that he would have received a custodial sentence even if the court had been persuaded to suspend it.

Frank was on the verge of a full breakdown and at least now has an opportunity to rebuild his life.

I was likewise relieved. My client simply did not deserve to be in this position. Yes he made an unwise decision to take the rubber gun out of his rucksack on a crowded train but he had learnt his lesson and did not deserve to be involved in torturous criminal proceedings which were an almighty strain. A timely reminder of why I do my job and how satisfying it can be to be part of a process which allows justice – and, in this case, common sense – to prevail.
Jim Skelsey is a founding partner at BSB Solicitors