Tag Archives: CJS

One Rule for You…..

A busy PCMH list. The case of Regina v Neerdowell is called on before Her Honour Judge Potts-Puntahs. Mr Harry Charles Andrews prosecutes and Miss Fi Owen defends.

The Court Clerk: Are you Richard Neerdowell?

Def: Yes, miss.

The Court Clerk: Thank you, sit down.

Miss Owen: Your Honour, I appear to defend and my learned friend Mr Andrews appears on behalf of the prosecution. It is my application that the defendant not be arraigned today as the prosecution only served the papers yesterday….

HHJ: Is that right Mr Andrews?

Mr Andrews: Yes, Your Honour.

HHJ: They were ordered to be served six weeks ago Mr Andrews.

Mr Andrews: I know You Honour. It is a minor miracle they are here now.

HHJ: We’ll say no more about it Mr Andrews. Whilst the orders of the court are important, justice being done in the end is what matters. Now, Miss Owen, why can’t your client be arraigned?

Miss Owen: He has not had a conference with trial counsel….

HHJ: Miss Owen, you are here and can discuss matters with the defendant. You are here to make progress with the case, it is your duty to deal with the case expeditiously. Cases are meant to be ready for trial by the PCMH. Now, Mr Andrews, is this the proposed trial indictment?

Mr Andrews: It is the indictment that has been drafted, although the trial advocate has yet to be identified so they may take a different view.

HHJ: I quite understand, Mr Andrews. The Crown can have 28 days to notify the court who will be conducting the trial. Now, Miss Owen, any good reason why the defendant should not be arraigned?

Miss Owen: As I say those who instruct me only received the papers yesterday so the defendant hasn’t even seen them yet….

HHJ: Yes, well he knows whether he has done it or not, so the question of his plea is a simple one. Is he guilty or not?

Miss Owen: But it is not that simple. He is charged with possession of a prohibited firearm. A person in that situation does not necessarily know whether it falls within that definition or not….

HHJ: If he wants full credit he had better make it his business to know.

Miss Owen: But, with respect Your Honour, it is the sort of thing only an expert can know. And the defendant is not an expert.

HHJ: Let me make a note of that…. (speaks sotto voce whilst writing) “lethal weapon in hands of man who does not know what he is doing, potential aggravating feature” (the Judge finishes writing and looks back at counsel) Right, Mr Andrews, is there a report about the item?

Mr Andrews: Yes, Your Honour, the short form forensic expert’s report is at page 22 of the bundle….

Miss Owen: (leaps to her feet) When my learned friend says “expert” that is not accepted by the defence, Your Honour.

HHJ: Who is the expert Mr Andrews?

Mr Andrews: I understand that it is Bob Gunn, a civilian worker for the police armoury. Well, when I say civilian worker, I in fact mean cleaner. But he is quite a fan of the Dirty Harry films. And whilst it is still only the short form of his report it would appear that, in his expert opinion, it looks quite like the sort of thing that could, in a certain light, be a handgun. Whilst I accept that it is not perfect it is all we have been able to obtain in the nine months that have elapsed between this defendant’s arrest and his charge.

HHJ: I quite understand Mr Andrews. This is, after all, only one of hundreds of cases that the police and those who instruct you are dealing with. Now, Miss Owen, anything else to say on the subject of arraignment?

Miss Owen: Yes, Your Honour, it would be my submission that this is a case that should be dismissed for lack of evidence….

HHJ: That is an application I would ordinarily expect to receive in writing, Miss Owen….

Miss Owen: I know, but, as Your Honour knows, I only got the papers yesterday…

HHJ: Miss Owen you have had the papers overnight. That is more than enough time for you to consider them and draft the appropriate written applications. This really is not good enough Miss Owen. In this one instance, Miss Owen, I am prepared to deal with your application without written notice and I am against you.

Miss Owen: But….

HHJ: (raising voice) Miss Owen, I have given my ruling. It seems to me that there is adequate evidence to raise at least the suspicion that this defendant may have committed some offence of a nature which it is unnecessary to specify with any degree of precision at this moment in time. Now if only you recognised that fact then this defendant may have been given some proper advice in conference. But as he hasn’t all we can do is have him arraigned and put the public to the expense of a trial.

(The defendant is arraigned and enters a plea of Not Guilty)

HHJ: Miss Owen, where is the defence case statement?

Miss Owen: As the papers were only served yesterday statute allows a further 27 days for the provision of a defence case statement.

HHJ: That’s not very helpful. It doesn’t matter what statute says, have you not read the Criminal Procedure Rules? A defence case statement is vital to the effective conduct of a PCMH. Your consistent failures are most obstructive.

Miss Owen: But it’s not my fault, the Prosecution served the papers late.

HHJ: This is not the forum to carp, Miss Owens. This is a court with a “can do” outlook. And you are the one that “has not.” Did those who instruct you chase the papers?

Miss Owen: Yes they did, they sent two emails to the Crown and one to the court. They received no respon….

HHJ: (interrupting) But did they chase the response? Did they email every day? Did they go round to the offices of the Crown and chain themselves to the railings until they were given the papers? No, Miss Owen, no they did not. The criminal procedure rules are not a parlour game Miss Owen. Everyone needs to collaborate to convict the guilty. Now, your solicitor can provide the court with a signed, typed DCS by 4.30 today.

Miss Owen: I am not attended by a solicitor today. Since all the cuts they don’t send anyone. In fact they don’t even employ anyone they could send….

HHJ: In that case, Miss Owen, it looks like you’ll be providing a signed defence case statement by close of business. Right, now, trial dates.

Mr Andrews: I am told by the listing officer that there is a two day trial slot available in the first week of November, Your Honour. I should make it clear that is November 2015.

Miss Owen: I hold the brief on behalf of my learned friend Mr N’Lucky who is already engaged on a trial that week. But he is available the week after.

HHJ: As you have been so keen to point out, Mr N’Lucky has not had a conference and the court cannot countenance delaying this case for his availability. Justice delayed is justice denied and all that.

Mr Andrews: I should say that I don’t have witness availability today, may I have seven days liberty to vacate?

HHJ: Of course, Mr Andrews. Now the advantage of the case being heard in 2015 is that a mattress on the floor in the corner of a cell in HMP Overfill may have come free by then….

THERE IS A CONSULTATION THAT STILL NEEDS RESPONDING TO. YOU CAN DO SO HERE.

Friends Again

With the announcement over VHCCs it would seem that the Bar and the MoJ are friends again. I am not sure that the same can be said for the solicitors’ profession and the MoJ. The Law Society have always seemed on friendlier terms but there seems little genuine affection. And when it comes to the Bar and the solicitors, well, that is a topic far too controversial for little old me.

So now the Bar are friends again with the MoJ it is time for the Bar to tell the MoJ some of the things that only friends can really say to each other. You know the sort of thing – “you have halitosis” or “you get a bit whiffy towards the end of a warm day”.

So here goes – all this stuff about fees has been fiddling whilst Rome burns. The CJS, your CJS, no, our CJS stinks. It absolutely reeks of failure.

We have the judiciary warning us about the lack of resources in the system. We have the prisons inspector warning about prison overcrowding.

And I warn you now that there are daily examples of delay and disaster like this. As I have banged on about in past blogs, nothing is working correctly. I have appeared in seven cases on the trot where the papers have been served late or not at all, where the indictment has been wrong or where there has been further delay. It is not that I am unlucky. Paul Tubb wrote an open letter to the Minister detailing his experience of the farce we now call the CJS.

If I worked in the NHS or the Passport Office I would be called a “whistleblower”. As it is, I am just a friend telling a friend where they are going wrong. Be a pal and listen.

No more targets. No more pilot schemes. No more wifi. No more tinkering. No more restructures. Just invest a bit of time and a bit of money getting the basics right.

Dear Damian

Dear Damian,

August is traditionally seen as the silly season in the news cycle so it was a perfect time for you to launch your policy concerning magistrates and making the criminal justice system more efficient. By that I mean such a vital policy should not be lost under the morass of other policy announcements, rather than it fitting nicely alongside stories concerning Katie Price or that nice chap with the hair in One Direction.

So my friend, you have identified one of essential problems at the heart of the criminal justice. It is important that magistrates “are routinely dealing with serious and complex cases, within their powers, rather than committing them to the Crown Court for sentencing” and that you find a way of “unclogging magistrates’ courts, for example, by dealing with the 500,000 or so simple road traffic offences out of the traditional process, freeing-up time for magistrates in courtrooms to deal with more serious offences”. Serious and complex cases are exactly what the magistrates is for, not for dealing with cases where someone is prosecuted by the state for driving matters – I mean that is virtually just an exercise in revenue raising by administrative act so should not have that whole “burden and standard of proof” thing anyway. You speak of these hearings being dealt with by a single magistrate in an office. Too right. No need for decisions that can lead to fines, points on driving licences, economic impacts on the individual’s ability to get jobs and insurance and decisions that may ultimately lead to a driving ban to be taken under public scrutiny in open court at the heart of the community. That’s not what the lay bench are for at all.

This is why your policy announcement rises above the normal silly season fare. You are restructuring the whole criminal justice system as we know it. You envisage a magistrates’ court that “routinely deals with serious and complex cases”. The Consolidated Criminal Procedure Rules currently advise magistrates “where cases involve complex questions of fact or difficult questions of laws….. the court should consider committal for trial”. So your policy signifies changes to be made that are far reaching and fundamental. No wonder you would want them to knock Simon Cowell’s love life off the front page. This is not something to try to sneak in under the radar.

In your press release announcing your brave new world you draw the attention of the press to the comparative costs of dealing with a case in the magistrates and the Crown Court. Can I suggest a simple way forward? Get some of those vans. You know, the “immigrant go home” vans? They have proved a bit controversial so get them repainted with the slogan “your worship, accept jurisdiction” and drive them in the vicinity of all magistrate courts. Magistrates have to realise they are volunteers, unlike those expensive Circuit Judge types. They are the very definition of the Big Society. And that means not committing people for sentence is cheap. Bloody cheap. I know that the Consolidated Criminal Procedure Rules state “the court should never make its decision [whether to commit] on the grounds of convenience or expedition” but it doesn’t hurt if we hammer it home to the bench that it is cheaper. The CCPR doesn’t say they can’t base the decision on costs. They probably should not say in open court but no harm giving them a nudge in the right direction is it?

One of the things that you point out is that in 4 out of 10 cases that are committed to the Crown Court for sentence the defendant receives a sentence that is less than the maximum available to the magistrates who committed him/her for sentence. So only 6 in every 10 get more than 6 months in custody when they have been committed save for pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. This is what I like to call the 666 factor (it’s an omen, Damian, an omen).

So we have the situation where a magistrate will often take the decision that they would have passed a higher sentence than is ultimately imposed by the troublesome full time, legally qualified judiciary. Not just an isolated incident but in just under half of all the cases committed. I even understand that, not infrequently, the Crown Court judge will impose a community order in cases where the Magistrates thought their powers insufficient. There are only two answers. One is to up the maximum sentence available to the magistrates. I see in your speech you dangle that tantalisingly before them. But what is much better is just to get them to rein it in a little bit. Have them think “well I would hammer them, but if I just knock a few weeks off I can squeeze it under our maximum and keep him away from that namby-pamby bleeding heart liberal soft arsed Judge and save loads of money in the process”. So we save costs and probably get a nice jump in the prison numbers. Lots of lovely short term prisoners who have little access to rehabilitative work in custody just banged up for hours on end playing Playstation. Get them in custody and get them out again to get them back in again. It is devilishly good.

Admittedly most of those defendants will probably elect to use their automatic right to appeal that sentence to the Crown Court. So the cost saving may be subsumed in to another part of the budget. But I am sure you have a plan for that. Like take away the automatic right to appeal (the devil is in the detail, Damian). It may not be justice but (to quote Franklin Sinclair) it’s not your job to care about justice. Well technically it is, but let’s not quibble over job titles.

Keep up the good work. Perhaps with all the money you are looking to save in streamlining the system you could put some money back in to fees?….. Only joking!!

Yours admiringly,

The Gardener

PS my favourite Kylie song was always “Better the Devil You Know”.

PPS it may interest you to know that if you Google “Damian Green” one of Google’s suggested search terms is “Damian Green Fiddle”. Was a little worried it was going to be one of those tricky expenses misunderstandings like your boss Chris “Split the Bill” Grayling but turns out there is a violinist called Damian Green. Funny.