Avoiding the Cracks

Disturbing news reaches me from Aylesbury. Now there is a phrase that I have never had cause to use before. I apologise to Aylesbury if I have the location incorrect.

The news is this – in a Crown Court, believed to be Aylesbury, counsel and/or solicitors for both sides are being told that they have to attend an additional hearing, held on the last Tuesday of every month, in order to explain why their trial cracked on the day.

My blood boils.

We are used to seeing newspaper reports about out of touch Judges. That is something that always made me laugh as the Judiciary will experience more of all strata in society than most. Yet this practice demonstrates just how out of touch some criminal Judges are with the day to day realities of criminal law.

The very last thing Counsel need is yet another hearing for which they do not get paid. The very last thing Counsel needs is another commitment in their diary to juggle. The very last thing Counsel needs is to be treated like an errant schoolchild who has to explain themselves in the Head’s office.

I have cracked more trials than I have fought. If I had not, if I had fought every trial that I have cracked, I would have a diary of work from now until the day I retire (albeit that day is probably sometime when I have passed my 80th birthday).

The administration must know that the only reason why the system has not yet ground to a halt is because trials crack. A cracked trial means that tomorrow’s trial has a chance of a home. I have had more Judges thank me for cracking a trial than I have ever had thank me for running one.

The simple truth is that the opposite of a cracked trial is not an early guilty plea. It is a trial. I have sat opposite enough clients in 21 years to know that the moment of trial is the most fertile ground for advice to be tendered. You will have given the same advice months early. Yet the penny only drops at that moment.

Or you have clients that know the score. They make the decisions. They will weigh up the gamble of being able to extract something from the CPS or the prospect that a witness will not attend and decide they want to wait and see.

And when you are dealing with someone who is sufficiently chaotic that they sell drugs, decision making is not often high in their skill set. When you represent someone who would rather do an extra six months for a Bail Act Offence because they do not want to miss this Christmas and thereby guarantee they will spend next Christmas behind bars, all the talk about diminishing credit will not feature highly on their list of priorities.

I am afraid that a lack of resources for both the police and the CPS means that the full picture is only available to the advocate by the day of trial, if you are lucky. It is only then that justice can properly be served, justice to both sides. Many cases have no lawyer attached to them before this point. They languish, untouched on a shelf. It is only at the point of trial that someone is available to make the necessary decisions and will only latterly have had the information upon which to make them. That is the reality.

That politicians pretend or refuse to acknowledge this is one thing, for the Judiciary to do so beggars belief.

If you eradicate the cracked trial there is only one consequence – we are going to need a bigger court (the eagle-eyed amongst you will have spotted that I have used that Jaws based joke previously, cut me some slack, I am recycling). Get rid of the cracked trial and you are going to have to be prepared for waiting times for trial to be double what they are now. And presently that can be a long time.

I hope the news from Aylesbury is wrong. I hope that such a scheme does not exist. I hope that those caught up in it do all they can to demonstrate the folly of it.

I have always resented filling in the cracked and ineffective trial form. Have always wondered why it is not accompanied with a “Why did this trial not crack?” form. Well from this moment on I am not completing them. Let the Government gather their statistics however they chose. I am not paid to do so. I will rely upon the Judiciary to tell them the realities and not to pander to some imagined picture of the criminal justice landscape.

9 thoughts on “Avoiding the Cracks

  1. Jon Mack

    This sounds about right for Aylesbury. “Your barrister says you wish to plead ‘not guilty’. Are you sure? It’s a matter for you, not your barrister” was one memorable exchange from HHJ to my client in the dock.

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    1. Jon Mack

      Meant to add – the CPS subsequently dropped some of the charges, and accepted a plea on a basis to others. So my client was right to hold his nerve at the preliminary hearing.

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  2. thebungblog

    Reblogged this on Do Right, Fear No One and commented:
    Jaime sums it up in one paragraph. What ARE we doing letting them get away with this?
    “The very last thing Counsel need is yet another hearing for which they do not get paid. The very last thing Counsel needs is another commitment in their diary to juggle. The very last thing Counsel needs is to be treated like an errant schoolchild who has to explain themselves in the Head’s office.”

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  3. Dan Bunting

    I generally fill out the cracked trial forms with someone along the lines of “because of the lack of resources to the CPS/Court/Defence X and Y was not done and so … ” Doubt it does any good.

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  4. Stephen Spence

    I can foresee a number of questions being asked on the Tuesday to which the answer will be “That, I am afraid, is confidential and covered by client lawyer privilege, Your Honour”

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  5. Battleweary

    It’s predicated on the utter fiction that we as advocates are the biggest influence on the when a defendant chooses to plead guilty. We have an influence on if (to a point) but not when. I’ve heard this nonsense from Politicians and civil servants but if the Judiciary are joining in then it smacks of Judicial amnesia of the realities of litigation.

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