A few years ago the CPS advertised for lawyers who would see the case from “cradle to grave”. The advertisement showed a lawyer one step behind the police as they burst in through the door of the suspect’s house and then showed the same lawyer representing the Crown before the Crown Court Judge. The sort of lawyer that Emma Thompson would play in a film.
The idea of case ownership is laudable. That a lawyer should have overall control of the case from start to finish has obvious benefits. Decisions are made early, issues are refined and the trial process is more efficient. It is true for both sides, prosecution and defence.
It is such an important aspect of the Criminal Justice System that it is catered for in the Criminal Procedure Rules. Rule 3.19 of the CrPR requires the defence to notify the court of the identity of the trial advocate no later than the day of the PCMH and no later than five days after any change. The system of payment of defence fees is specifically designed to ensure that the same advocate attends the PCMH and the trial. Somewhere it is said that the judiciary should make sure listing practices are adopted that makes this possible.
Does it happen? Does it buffalo! (that was an autocorrect suggestion, but I thought “buffalo” said what needed to be said).
So let me tell you a story. As ever it is a case that I have conducted recently. The truth is, for the advocate, that there is nothing better than the simple return the night before. You can breeze in, disagree with what has happened before, criticise everyone else and you cannot get the blame for anything. Its great. You’ve had no responsibility for editing, drafting and babysitting. Perfect.
So that is what I found myself with recently. Someone else’s defence return for trial. Now I had cause to look at the PCMH form. In the box where the the names of the trial advocate and PCMH advocate had to be filled in there were the names of two different in-house advocates from my instructing solicitor and an in-house advocate from the CPS.
This is not a complaint about in-house advocates. Employed advocates are an economic reality. In-house advocacy is not incompetent advocacy.
However everyone familiar with the PCMH form will know that the identity of the defence trial advocate is required but the identity of the prosecution trial advocate is not. Look again at Rule 3.19, it focuses on the defence advocate only. You can justify it all you want, but the truth is that identifying an advocate responsible for the case is equally, if not more, essential when it comes to the prosecution.
The original PCMH forms required the identity of the trial advocate. The CPS managed to persuade those that design the form to remove this requirement. The reason? Simple. The CPS want to keep hold of the case until they know whether it is going to plead or not. It makes their in-house advocates more economical if they go to court with a pile of PCMHs. The ideal of cradle to crave prosecuting was just the thing of an advert. Efficient and effective case management sacrificed for cost.
Who was it that allowed this? The form, the CrPR and the PCMH itself are the provenance of the judiciary. The judiciary have allowed the financial requirements of the CPS to dictate what happens in the judicial process. Anyone for a bit of judicial independence?
That is just a general moan. As I say, the form named the trial advocate as someone from my instructing solicitor. However my return came from one of my colleagues. How come? Well at the PCMH the Judge refused to fix the case for when the identified advocate could do the case. So my colleague was briefed. As it happens the CPS also briefed the case out. My colleague even had a conference, in preparation for the trial. And then the trial date that had been fixed at the PCMH, at the insistence of the Judge and regardless of the original advocate’s availability, was pulled from the list the night before.
Now here we have the problem with lists. Frankly courts do not have the resources to deal with the caseload that they face. The courts are not allowed to fill each courtroom with a case because they are not allowed to employ a Judge in each of the courtrooms that exist. So cases are listed with barely a chance of being heard. And get pulled the night before.
So my colleague had to take the chance that the trial would be refixed when he could do it. And, despite the fact that he had met the defendant in conference, the trial was fixed when he could not do it. So it was returned to someone who could do the new trial date. In the meantime the prosecution advocate found himself in the same position, so that brief went to someone else.
I was not the person that the case had been returned to. That was another of my colleagues. But when it came to the night before the new trial date, listing did not have any judges. So pushed it back a day. Rendering the second substitute advocate unable to do it. So in I breezed. And everyone involved in the case between PCMH and my eventual trial date will get paid not a single penny.
There is no prospect of continuity of advocate from start to finish. If it happens, it is more by luck than design. The CPS will, with the connivance of the judiciary, instruct on the basis of keeping the money in-house rather than on the basis of cradle to grave prosecuting. And then the trial will be fixed according to some arbitrary date that represents no more than a vain aspiration of when the case will be heard due to a lack of resources. And then everything will change again and the case gets thrown back on to the merry-go-round of listing and it is just a question of luck as to who ends up doing it.
Oh, and by the way, the case was a sex case. The sort of case that gets some degree of priority. Allegedly. The sort of case with a vulnerable witness, a witness who suffers from the delays caused by lack of resources, who suffers because the case is not dealt with efficiently due to a plethora of ever-changing advocates on both sides.
It became painfully obvious during the last election that this is not an issue that the politicians and the electorate are concerned about, despite some admirable efforts to make it an issue. What is needed is a true, headline-grabbing crisis to bring the general, day-to-day crisis to the attention of those that could do something about it but choose not to. Surely the time has come for those who work within the system, the system that fails on a daily basis, to create the sort of crisis and chaos that will make them listen.