My client is a repeat offender who stole to fund his crack habit. But he's willing to confess to 50 burglaries. Can I keep him out of prison and get him counselling instead?by Alex McBride / July 26, 2008 / Leave a comment
My client has just agreed to plead guilty to a lesser charge, which, mercifully, is acceptable to the prosecution. There will be no trial. No embarrassment of trying to sell his hopeless defence to the jury. What happiness! It’s 10.30am and the day is mine. Unless I make the mistake of going back to chambers and putting myself at risk of the dreaded late return.
The late return is a brief that no one at the English bar wants to touch. It has bounced up and down Middle Temple Lane without finding anyone dumb or desperate enough to accept it. The “cab rank” rule of the bar requires that if a barrister is free, it is their professional duty to take the case. In practice, people can plausibly claim that they are too busy. But eventually the music stops, and if the brief lands in your lap you have to keep it.
Sensible junior barristers avoid chambers until a decent time in the afternoon. When I foolishly sneaked back into chambers that morning, I was ambushed by the senior clerk. “Sorry, Mr McBride, sir, could you go down to the crown court? There’s been a bit of a cock-up.” Clerks may address barristers as Mr or Miss, but don’t let that mislead you as to who’s grinding the organ and who’s dancing in front of it holding a tin cup.
An hour later, I found myself in the cells with a crack addict and career burglar called Howard. Howard’s latest crime-fest had come to an end in a medium-sized seaside town. A man peering from behind his curtains had seen Howard, in broad daylight, casually picking the lock of his neighbour’s front door. The man, outrage rising in his throat, couldn’t dial 999 fast enough. Meanwhile, Howard effected his entry, grabbed a holdall lying in the hallway and dashed around the house filling the bag. It was Junkie Supermarket Sweep with the honest citizen on the phone standing in for Dale Winton. “He’s in the house. He’s taking the DVD player and the PlayStation… He’s got the camera… He’s in the bedroom. He’s even taking their shoes!”
Howard managed to get away before the police arrived, and instantly swapped his bumper haul for crack. Yet this was to be the apotheosis of his criminal career. In his hurry he’d left a fingerprint, or “dab” as it’s called in the trade. As he was already known to the police, it led them straight to his door. The coppers then linked him to four other recent burglaries in the area. Howard was faced with an overwhelming prosecution case.
Exhausted by the work involved in servicing a £1,000-a-week crack habit—stealing, selling, scoring—Howard decided to confess. Coming clean felt good and, like anyone with an addictive personality, once he had a taste for it he wanted to do it again and again. The police drove him around town and he pointed out all the places he’d done over. Clear-up rates soared. He then asked for a further 45 burglaries to be taken into consideration in sentencing. At this point, Howard had been out of prison for six weeks.
Howard was the classic multiple-offending drug user. The list of his convictions for dishonesty was pages long. His ever-lengthening prison sentences had failed to deal with his real problem: he had a crack addiction that he couldn’t afford. He was, in theory, eligible for a drug treatment and testing order (DTTO), now called a drug rehabilitation requirement under the 2003 Criminal Justice Act. This is an alternative to custody which involves an intensive programme of counselling.
Howard’s case for receiving a DTTO was supported by some of the guidelines that govern these orders. Since DTTOs were designed to help drug users address their addiction—the root cause of their offending—his string of previous convictions and new offences were not necessarily fatal to his chances of getting one. On the other hand, another guideline is that judges should be mindful of the principle of proportionality by balancing the prospect of rehabilitation with the criminality displayed by the offender. Howard may have been a more or less non-violent burglar, but he had still cleared out 50 houses, breaching his terms of release from prison in the process.
DTTOs, which sit uncomfortably alongside the government’s draconian drug sentencing regime, don’t have a great success rate in turning offenders away from drugs and crime. Many judges think they don’t work at all. But prisons are just as ineffective, being awash with drugs. Often the only after-prison care an addict gets is the discharge grant of £46, which he duly uses to score.
I mitigated on Howard’s behalf, arguing that the extra 45 burglaries wouldn’t have been solved had it not been for him and therefore he should be sentenced on the basis of the first five only. The judge took the unusual step of considering the sentence overnight. He came back and gave Howard four years—not a bad result, although I’d hoped for better. The government’s war on drugs hasn’t worked: drugs are cheaper, easier to find and more widely used than they were before it started. As for Howard and myself, we’re like the characters in Catch-22. No matter how many missions we complete, there’s always another one. Howard snaps to attention when his addiction calls—and I’m just as powerless before my senior clerk.