I am about to quote from a document that was created on behalf of the CPS. I guarantee it is accurate. It was created for a case in Manchester and is currently pinned to the wall of the Crown Court robing room. The document reads:
The Crown asks the defence to indicate which of the exhibits they require reproducing. The Learned Court will be aware that there will be a costs implication to the public purse by the production of copies of the said exhibits and at the sentence hearing the Crown will raise the issue of this cost for each and every one of the exhibits required to be served in the light of the guilty pleas entered.
Now pause for a moment. I am not making any comment about the particular circumstances of that case as I know nothing about it. But pause and think what this is saying about the state of criminal justice in this country as we enter 2014.
The state brings a case against an individual. The prosecution disclose the material they base their case on. The prosecution also have a positive duty to disclose information that assists the defendant in the preparation of his defence. And that includes in relation to sentence. What this document seeks to do is to limit the opportunity of the defendant to see the evidence upon which the prosecution base their case. It throws a burden on to the defendant and the defendant’s lawyers to think very carefully before they ask for copies of the exhibits in the case against them. It is a burden backed up with the threat of sanction, of either the defendant or their lawyer having to pay costs.
Now I firmly believe that no court would impose such costs. I also believe that the CPS are not trying to withhold anything. However it is indicative of how low our criminal justice system has sunk, how beholden effective justice is now to cost, that the CPS would even contemplate such a suggestion.
So the CPS feel that to save costs the defence need to be able to justify in advance why they should see the evidence in the case where they have pleaded. It is not farfetched to say that in exhibit-heavy cases things can often emerge from unexpected places. Some thing which puts a different slant on the case or demonstrates the hierarchy of offenders. Some times it may provide support for a basis of plea. Other times it is not there. You only know when you look.
I can appreciate that simple cases, a shoplifter who admits it in interview, can be dealt with without the need for a full set of papers. I do not like it but I am probably too traditional in thinking people should only plead after knowing the full nature of the evidence. The risk of an injustice is slight. Paper heavy cases are different. They are usually more complicated than someone stuffing some razor blades down their trackie-botts. Injustices do not just occur when an innocent woman is convicted. They also happen when anyone serves a day in custody more than is necessary or justified on the basis of the evidence. Which is why there should be no question about it all the evidence being served on all parties. In a case to which the above direction would apply the prosecution advocate would have the exhibits, I guess the Judge would have the exhibits and the defence advocate? Well,I guess they will just have to guess what everybody else knows.
If the resources are so stretched that the prosecution wish to cut corners in the service of their own case then how far does the corner cutting stretch? If you are not freely allowed the exhibits in the case against you, how confident can you be that the unused material will be scrutinised for material that assists you? I would never think that unused material is not properly reviewed but then again, I would never have thought that I was not going to see the exhibits as a matter of course.
On the document posted to the wall of the robing room somebody has written “now you have to pay to see the evidence against you.” Which is a joke…..isn’t it? Every day now I see some reason why the criminal justice system is a joke. It just isn’t a very funny joke. To quote from another, somewhat different, Mancunian source: “But that joke isn’t funny anymore, It’s too close to home, And it’s too near the bone, It’s too close to home, And it’s too near the bone, More than you’ll ever know …” The problem is that the public think this happens in other people’s lives and it does not matter until it happens in their’s.
The criminal justice system is not about delivering savings. It is about delivering justice. It is not about winning votes. It is not even about winning cases. It is about putting justice above all else. Above the cost of photocopying.
That is why this Monday 6th January barristers and solicitors up and down this nation are taking part in an unprecedented protest. This is not just about fees. The Criminal Justice System cannot withstand any more cuts. We need a Lord Chancellor who protects the courts, not one who plays politics with them. Perhaps the next time the Government want to publish some ad hoc statistics they may like to tell the public how much money they have taken OUT of the effective prosecution of cases. Maybe compare it to the amount of money they spend on things like Police and Crime Commissioners. In times of austerity the priority should be frontline services, not pointless initiatives aimed at “public confidence”, otherwise known as “trying to win votes.” Like the DPP, the Lord Chancellor should a legal, not a political appointment.