The Unfair Taper

This is a genuine record of the progress of a criminal trial before the Crown Court. No criticism is intended of any party or individual. No exaggeration has been made. What is important is that under the current Government proposals counsel would be penalised for the progress of this case.

    Day One

The Judge has a couple of cases to deal with before commencing the trial. That allows counsel to discuss one or two final matters prior to the jury being sworn. As soon as the Judge has finished his other work the parties are ready to go. A jury is sworn. However this is a day of industrial action by certain members of the court staff. This trial involves one principle witness who will give evidence via the live link facilities. Other ongoing trials need the non-union staff to cover things like juries retiring to consider their verdicts so the case has to be adjourned at lunchtime until the following day. All concerned in the case, Circuit Judge and two counsel with 40 years experience of such matters, agree that the case should be concluded within 3 days. Comfortably.

    Day Two

Everyone is ready and raring to go at 10.30, the allotted start time. Counsel have been in court before then, testing that the DVD playback works and is audible. The staff test the link to the witness room. Everything is ok. Prosecution counsel open the case to the jury. The Judge talks to the witness over the link and we prepare to watch the DVD of his evidence. Save for the fact we cannot. Inexplicably the screens are blank. 45 minutes are lost whilst three members of the court staff struggle to rectify the problem.

The next problem then becomes apparent. The witness has certain mental health difficulties. He can properly be described as vulnerable. This is known in advance and there has been an assessment of his needs. However whilst the DVD is being viewed the witness, who can be seen at all times by the Judge, indicates that he needs a break. Due to his problems all parties, including the defence, immediately agree that he should be provided with whatever accommodation is required for his comfort and wellbeing. Hence a video that has a duration of 60 minutes takes almost two hours to watch due to the need for frequent breaks. The frequency of requests for breaks increases once cross-examination commences. The length of these breaks vary between a few minutes to twenty minutes.

In this second afternoon of the trial there was over an hour available for the purposes of cross-examination. Due to the need for breaks actually questioning occupies 20 to 25 minutes of this time. Additionally the pace of the questioning is dictated by the needs of the witness. The propositions explored are broken down in to manageable chunks. To allow the witness to understand and put in context the questions there has to be a degree of recap of what has gone before. Any competent counsel adapts the manner of their examination to cater for such matters. You may be able to cover the same ground with one witness in 5 minutes, with a different witness (a child, someone with learning difficulties or someone being deliberately obtuse) the same ground may take 20 minutes.

    Day Three

Today there is a valedictory for a Judge who has been appointed to the High Court bench. That takes place at 10am with the courts listed to start at 11. Now I will have a little personal moan here. When the Northern Circuit decided to hold a meeting during court hours to discuss and respond to the consultation the majority of the local judiciary responded that the sitting of the court could not be disrupted for this. Here we are, part heard in a trial, already losing time and the court is taking time out to celebrate the advancement of…. a member of the local judiciary. I actually support this, I welcome a good relationship between local practitioners and bench. I welcome the opportunity to celebrate the achievements of one of the Judges I regularly appear in front of. However I am also a big fan of consistency. And I kind of believe that practitioners dealing with the approaching wreck that is the consultation is on an equal footing with saying “well done” to someone on their new job.

Back to the true theme of this piece. Although the valedictory concludes at about 11.15 the court is not ready to commence again until 11.40. We continue the staccato cross-examination of the complainant. We break for lunch and the jury are sent away until 2.15 as the Judge has to deal with another case at 2. So of course we do not commence in the afternoon until 2.30. When I finally finish with the complainant it is 4pm. The only other witness in the case is also on videolink so we cannot start her that afternoon.

    Day Four

Due to testing the equipment and then ironing out one or two problems with the next video witness the court does not start until 10.50. Eventually, with only two breaks this time, we conclude that witness. And the rest of the prosecution case is dealt with by formal admission. Fifty pages of witness statements, the bad character evidence and fifty pages of interview dealt with in formal admissions that take one page of A4. The rest of the day is taken up with the defence case.

    Day Five

All that is left are speeches. The Judge quite correctly decides it would not be appropriate to sum the case up in the afternoon before the weekend. Additionally he has three cases that have been moved back from earlier in the week including a sentence listed for an hour. Those are listed at 12.30. Of course we start 20 minutes late as efforts are made to set the air conditioning to reduce the temperature of the court as it is 74 degrees. Not exactly conducive for listening to counsel….

So there we are. A week in the life of a case that should have lasted three days. Not a single delay was the fault of the advocates. The only contribution the advocates made to the length of the trial was to reduce it by agreeing formal admissions. Of all the people involved who are the only ones for whom it is suggested their remuneration decreases each day it lasts? The advocates. The daily taper is a slur made against every advocate operating in the Crown Court. It says we drag cases out to make money. And it is exactly this false justification for the “reforms” like this that runs through the consultation like Blackpool through a stick of rock. If the Lord Chancellor came out and made cuts that would be one thing. It would be a thing that I would be up in arms about. But to dress them up as some form of reform, some form of streamlining of the system just sickens me. It maybe hysterical but it is also indicative of a confidence trick that the MoJ is trying to pull on the public to make cuts where there is no room to make cuts.

Do not let the Lord Chancellor get away with this inequity. Sign the e-petition.

4 thoughts on “The Unfair Taper

  1. criminalbarassociation

    Reblogged this on criminalbarassociation and commented:
    “The daily taper is a slur made against every advocate operating in the Crown Court. It says we drag cases out to make money. And it is exactly this false justification for the “reforms” like this that runs through the consultation like Blackpool through a stick of rock.”
    And this is a graphic example of how Counsel work, but the Taper does not.


  2. Fatcat Lawyer

    Reblogged this on fatcat lawyer and commented:
    Another insightful blog about the gulf between the spin coming from the MOJ and the reality. Defence Counsel are the only people who don’t gain anything by stringing out the progress, and continually save the court time and money.


  3. Neil Ross

    Sadly a very accurate reflection on court life. One correction – it is only (for now) defence advocates who are to be affected by tapering, not prosecution as well


  4. Pingback: Save UK justice: the blogs | ilegality

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