Another Day, Another Moan

It is always the defendant’s fault. If it’s not the defendant’s fault then it will be the fault of the defendant’s dastardly lawyer. If we come down hard on them the system will run more efficiently and will be fairer as well. They are the enemies of justice. They are the cause of thousands of pounds of public funds going to waste.

Which is exactly what happened with a trial I defended recently. The shameful defence lawyer (me) asked for an adjournment because the CPS had served the medical evidence at 2pm on the first day of trial. The statement had only been written in May. It had only been sitting there on the file as the timetable for the service of the evidence lapsed in June.

However this is not what I am going to moan about today. It is such a common occurrence that it is barely newsworthy. All those lawyers getting paid very little as justice is delayed by glitches in the system is just not worthy of comment. Or worth doing anything about.

What I am going to moan about is the preliminary hearing that happens in every case. And yes I know I have moaned about this before. A lot. However something happened to me recently that highlighted how crazy the system has become. How terribly ill-thought. How dreadfully wasteful.

I prosecuted a prelim a while ago. When the PCMH came around I had not received any papers. I attended at court and discovered why. The prosecution had decided to discontinue the proceedings as there was no realistic prospect of a conviction.

This decision can only really be taken when all the evidence has been properly reviewed. The service of all the evidence only takes place after the prelim. The prosecution can bring an end to the proceedings by issuing a notice pursuant to section 23A of the Prosecution of Offenders Act 1985 which would bring an end to the proceedings there and then without further cost.

The problem is that the system now insists that an indictment is prepared for the prelim. This is so the defendant can plead guilty before the prosecution have a finalised idea whether there has been an offence or not. The consequence of this is that the prosecution are precluded from using the section 23A mechanism for discontinuing the proceedings because they can only do it before the indictment is preferred.

Brilliant. One device designed to force defendants to plead guilty before anyone knows whether they are guilty just to save costs defeats the device designed to save costs where everyone accepts the defendant is not guilty.

Ladies and gentleman, I give you the criminal justice system. Injustice, ineptitude and inefficiency.

4 thoughts on “Another Day, Another Moan

  1. kate mallison

    I am becoming increasingly hacked off at. the insistance on case management -no doubt frrom the senior judiciary who think the civil procedure rules can be imported into our system.this is a classic example of “own goal” as is the ghastly idea that there must be a DCS served at or before the PCMH -is it really a sensible idea to adjourrn so that this piece of paperwork can be done? OK I don’t get paid but the crown does and it costs the system to have the matter adjourned. What a waste of time and money.


  2. Matthew Buckland (@thebarwithmb)

    The procedure rules would be fine if they were applied. Instead, Judges continually tolerate abysmal standards from the CPS and then are surprised when they are confronted by further egregious ineptitude. The underfunding of the CPS is the route of so many problems;the intransigence of the government is staggering. Until Judges start imposing consequences for failures the system will not improve.


  3. Nick Johnson

    Not come across this procedure of arraignment at prelims in Liverpool. Isn’t the way of dealing with it to object on the basis that you wish to make an application to dismiss as the (non-existent) papers do not disclose evidence to support the charge? The app to dismiss prevents arraignment.


    1. jaimerhamilton Post author

      That does prevent arraignment. The notice of discontinuance procedure is still taken out because that has to be before the indictment is preferred. Secondly, full credit is withheld if a defendant subsequently pleads guilty at the PCMH if the indictment was available at the prelim.



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