Tag Archives: CPS

Every Dog has its Day

The white heat of anger feeds the desire to fight the Government at every turn. And we have plenty to be angry about. Years of cuts. Years of politicians badmouthing us. Year after year of our working conditions being eroded. It is the unprecedented sense of fury that now means the Bar stand on the brink of unprecedented action. The sort of action about which I have always dreamt. So why would I say that we should pause now? Why would I say, again, let’s take what is on offer and come back another day?

Some will say I lack back bone, that I am a coward. Some will say that I have self interest at heart. Some will say that I was wrong to say we should back down last time and I am wrong to do so again.

And that is okay. I do not hold a right to be right. I am not someone with all the answers. I am just doing what we all must do, I am listening to the views of others; I am weighing up what I think to be important; I am considering what can be achieved; I am learning the lessons of experience; and I am making my decision.

I have voted to accept the offer.

In 2012 I wrote a very angry letter. It decried the imposition of Fee Scheme C by the CPS. It railed against how wrong it was. It foretold the end of adequate representation of cases on behalf of the CPS. It was signed by 90% of Counsel on the newly formed advocate panels from Manchester. It was sent to the Chair of the CBA, ironically Max Hill. I had meetings with Maura McGowan about it. I had all the anger knotted up inside me. And yet nothing changed. Importantly we carried on doing the work, myself included.

Many will think that this would be an argument in favour of taking action. Again, we have been ignored for years. But I now appreciate that the rhetoric of being abused dogs means nothing in the cold reality of our fight to improve remuneration. What matters is actually improving our remuneration, not Shakespearean speeches or fantasy fee levels. It is about making sure that someone called in 2012, called in the year I was writing angry letters, is paid for things like the second day of the trial, is paid something which is worthwhile to conduct an appeal from the mags and is paid something approaching a reasonable fee when a trial is adjourned.

Once we have achieved that, we can continue to fight to get even better remuneration. We can fight to restore some sense of value to cases with higher volumes of evidence. We can fight to get paid for unused material. We can fight to get paid for the work we do. These are battles to be won, these are battles that can be won. They will not be won all at once.

By mid-July, a point at which we would be mid “no returns”, we will have a new Prime Minister and a new cabinet. That shiny new Boris or Jeremy will have made a lot of promises to get that new job. Those promises will have been to the public about headline grabbing initiatives and tax cuts and to their fellow politicians about jobs in that new cabinet. Those promises will not included more money for the Bar. We have the certainty of an improved offer on CPS fees that we can lock down right now, and a timeframe when we know that we will have to go in battle once again should AGFS not be improved. We need to secure those improvements now, before the political chaos of modern Britain means that cases going unprosecuted is just a footnote to what may lie ahead in Brexit Britain.

The bravery which many talk about being lacking in the leadership of the CBA is in fact the bravery that the Bar show time and time again in being prepared to take action. It is not the route of a someone that lacks courage to stand down from the fight, knowing that they will have to step forward again on another day. And that is what we are doing.

I didn’t back down in 2012, I just didn’t achieve what I wanted. I won’t have backed down in 2022, even if I achieve what I want in 2019. This is a war to be won battle by battle, and on Tuesday the 3rd of September, every counsel who is on day 2 of a trial, every junior counsel who has their non-custody, non-sex case stood out through lack of court time and every junior member of your chambers doing an appeal will be reaping the benefit of having won this battle and the battles that went on before.

That’s why I voted yes to the offer. I do so knowing we will probably be called upon again to act. I do so knowing that there are still cases which are not properly remunerated. But I believe this to be the best way. If I am wrong, if more people believe that we can do better by fighting on in this battle, I will be alongside you, refusing returns and taking part in whatever it takes. But I take the view that we can fight alongside each other now, or after we have secured this win. And I would much rather do what we didn’t do in 2012. I would much rather we improved things now.

And Death Shall Have No Dominion 

Make a note of this date. Go on, write it down now. It is 21.12.15. Or, if you are American, 12.21.15. 

What is so special about this date? Well it might just be the day when the Criminal Justice System finally took leave of its senses. I thought the suggestion of PTPHs being immovable and un-adjournable was going to be the zenith in jurisprudential crazy talk but I could not be more wrong. 

Today we have people talking about trying Lord Janner AFTER HIS DEATH. Yes I have just used bold, caps lock and italics to write that. I have had to deploy every formatting tool available to me to put emphasis on those words because they are right up there with Popes making horses Cardinals as an indicator of people playing with the power at their disposal as a whim. 

My fellow blogger, The Secret Barrister (s/he wears the gown as a cape with underwear over their clothing), has written a blog that deals with the practicalities and the background to this story. I recommend you head on over there to read it. But not before you let me rant for a little while longer. 

It is one thing to have trial in absence. It is one thing to have a trial of the facts when the defendant can play no meaningful part in proceedings. But to try someone AFTER HIS DEATH is a proposition so ridiculous it still requires the full gamut of format options. 

Where will this end? Why don’t we try Fred West? I mean, he voluntarily offed himself so we could probably use the existing trial in absence guidance, with a few tweaks. Or perhaps this ushers in a whole new era for the Criminal Justice System? From now on we can prosecute offences even where the offender has not been identified. It will probably require a change to the verdicts as it is a bit difficult to announce an anonymous, unidentified perpetrator as being Guilty or Not Guilty. Answers on a postcard please…..

This may in fact be an example of joined up thinking in Government policy on Justice. Recently Shailesh Vara told us that access to justice did not necessarily require access to a courtroom. Perhaps we can now add “does not necessarily require a pulse” to such legal brilliance. 

I wager my full AGFS fee for a defence sentence that this will not happen. The real problem is that the CPS have not come out and immediately said so. Their statement is cruel because it leaves open the possibility that this charade may happen. It will raise expectations that will have to be dashed in the name of common sense.

When a criminal justice system is used for the purposes of a show trial we all stand at the gates of hell. The CPS, in my view, made the wrong decision to charge Janner. The DPP’s judgement was right in her first decision. I just hope that they do not allow public interest in their next decision to be mistaken for what is in the public interest. 

Do not try a dead man. 

The Least Worst Wins

This week the BBC have portrayed the CPS as being “on the brink of collapse“. Of course this is wrong. They are not about to collapse. As an institution of the State they are not about to put the “Sorry we are closed” signs up. And they are not on the “brink” of something. 

They are well and truly where they are. And where they are is in a deep, deep hole. 

For many moons now, many…. no, let me rephrase that….. most people involved in the Criminal Justice System have been able to see that the CPS are barely functioning. The sign may say “Open For Business” but the quality of the service provided rates somewhere on a par with DelBoy and Rodney as renovators of chandeliers. 

What does that mean? The reality is that court orders are regularly missed, unused material is not properly reviewed, files are left untouched, evidence is not served, trials are not ready, work is undone, cases are adjourned and defendants walk free that should not. 

Do not get me wrong. The CPS is not the only element of the Criminal Justice System in disarray. The Police are over stretched, the Court estate is crumbling, prisons are understaffed, morale amongst Probation Officers is rock bottom, the waiting time for a trial grows daily, interpretation is a lottery of which language you will get and the defence are running on a shoestring. 

So what has been the CPS response to the media finally awaking to the mess that one limb of democracy exists in? It is contained within a blog published by them today. In it they describe the BBC report as “nonsense”. They point at a series of statistics and say “actually we are doing really quite brilliantly”. 

Were the CPS a sex offender this state of denial would earn them the most condemnatory of Pre-Sentence Reports. 

The CPS ignore what I believe every Crown Court Judge would tell them. They chose instead to point to statistics. No doubt they would say “Don’t listen to the anecdotes, count the numbers.”

Let us look how the numbers are a nonsense. 

The Blog makes the point that in the Magistrates’ Court the defence and the courts are responsible for more ineffective trials than the CPS are. “So forget your stories about us not serving evidence and look at the stats. See? We are the least bad and that makes us the best and ignore all those anecdotal tales of us being rubbish because the stats do not lie, my friend.” 

But let me tell you a little anecdote. It is about a Crown Court case but it could be any case. The case happened to be listed today. The Counsel instructed on the case had written three advices to the CPS asking for things to be done. Despite that, at court today, there was no file, no indictment, expert evidence had only been served the day before and nothing that Counsel had asked to be done had in fact been done. And the lack of resources in the Court system rode to the rescue because the case was adjourned through lack of court time. That will be chalked up as a stat agains the Court, not the CPS. The numbers do not tell the story. 

The blog goes on to trumpet the percentages of guilty pleas. Those are guilty pleas that are being dragged out of defendants who are expected to plead guilty before they know the case and against them and well before the CPS have done things like “serve the evidence.” The Government and the Judiciary are conspiring to paper over the cracks by withholding credit from those who wish to embody the maxim “innocent until proven guilty.” The maintaining or rise in guilty pleas has nothing to do with the efficiency of the CPS and everything to do with the rigging of the system to “encourage” guilty pleas. 

If the football authorities double the size of the goal, the resultant increase in goals scored is not down to an increase in the skill of the players….. And do not get me started on the impact of the Criminal Courts Charge on people choosing to plead guilty. 

It’s not the reliance on statistics instead of the truth that bothers me the most. It is this paragraph:

Like all publicly funded organisations, the CPS has played its part in reducing overall budgets. Over the last 4 years we have made savings of £338.1 million, which equates to almost 25%, comparing 2015-16 funding to 2010-11. This has been achieved while continuing to deliver justice to the public we serve, and maintaining strong performance levels.

It is almost as if the CPS believe it is their job to deliver savings. It is not. It is their job to deliver an effective and efficient prosecutorial service. And if they cannot do so because of a lack of resources it is their duty, the DUTY of those at the Head of the Organisation, to bring this to the attention of the public. 

Some areas of public spending have been spared cuts. The Criminal Justice System has not. This is due to the ignorance and short-sightedness of politicians. So many of us are telling them it is wrong. Not with false statistics but with expert testimony and first hand eye witness accounts of what is going wrong on a daily basis. The sort of evidence that the hard working and dedicated employees of the CPS rely upon every day. And the sort of thing the management now choose to ignore. 

I do not criticise those who work under the pressure caused by the lack of resources. I do not criticise those who spend most of their time fighting fires on every front. I criticise those who deny it happens. To the Managment I say “Shame on you.” They should be telling the public the truth and fighting for proper funding. Not shrinking into misleading denial. 

Better Early Than Never

A colleague of mine recently received a bad character application prepared by the prosecution. The application was sent out from the prosecution 12 days in advance of the next hearing in the case.

The Criminal Procedure Rules and common sense dictate that such applications should be made as soon as possible and at an early stage in the proceedings. This was not an early stage in the proceedings but at least it gave the defence 12 days to respond and, in the current climate, perhaps we should rejoice at this small victory.

The problem is that the application was sent out two weeks after the trial. The next hearing date is sentence.

Comical and depressing, all at the same time.

I know exactly what the problem will have been. It was dictated and went into typing weeks ago. There it will have languished for a while before being returned. Then it will have sat around for a while, waiting for the busy and the harassed caseworker to reach it in their ever burgeoning list of tasks.

How do I know this? Because I held in my hand today a letter dated 1st September that made it into the post for the 26th September. 25 days to turn around the typing and posting of a piece of correspondence. The problem? Lack of resources.

Recently HHJ Newell made the point, in open court, that we are fast approaching the time when there will be a miscarriage of justice. The fact is we have probably already gone beyond that point. We just do not know it yet.

As Judge Newell observed, “they [the staff at the CPS] are best endeavouring to work with a broken machine, it is not their fault.” It is a machine that has been broken by our politicians and the politically ambitious.

If a piece of prosecution evidence can be sent out two weeks after the trial and only in time for it to be wholly irrelevant for sentence, how can we be confident that an important piece of evidence is not being missed so as to lead to the wrongful acquittal of the guilty? Or some piece of unused material is not revealed that acquits the innocent man? How many ticking timebombs currently await discovery by the Court of Appeal?

When politicians talk of cutting this and cutting that, they should consider the damage they are doing.

The Crook, The Brief, Her Instruction and Your Money

There has been a spate of celebrity trials in recent weeks and months. One feature of the cases stands out. No it is not that they are all sex cases or even the fact they are all famous. The noteworthy aspect is the instruction of a Queen’s Counsel to prosecute the cases. The case of Stuart Hall was prosecuted by a Silk. Coronation Street actors William Roache and Michael le Vell were prosecuted by a Silk. To members of the public these will seem like serious criminal cases and the fact that “QC” appears after the name of those prosecuting the case when they are reported in the news may well not have registered as anything remarkable. However to those regularly appearing in the courts it does stand out. On any given day in Manchester, the courts where I regularly appear, cases of the nature of the aforementioned trials are being conducted without a QC in sight. Indeed I would venture to suggest that sexual cases of more gravity, complexity and involving even more serious consequences are consistently prosecuted by advocates who have not achieved the rank of QC. Cases such as the Rochdale sex ring trial which occurred in Liverpool was prosecuted by Junior counsel.

And the phenomenon is not simply restricted to sex cases. The Huhne/Pryce case was prosecuted by not just a QC but by Treasury Counsel, the best of the best. Now admittedly it involved the defence of marital duress but it was only a pervert the course of justice allegation that merited a few months imprisonment. Even more remarkable is the use of a Silk to prosecute Lord Edward Somerset (news report can be found here) for offences of assault. From the look of the report these were either way offences (in other words cases that are generally less serious) that were resolved by a guilty plea (no trial). I am not for a moment suggesting domestic violence is not serious. However these cases are the type of cases that are dealt with on a daily basis in the Crown Court by some relatively junior advocates.

How is the decision to instruct a QC taken? The CPS have a guide called the decision tree which provides the circumstances leading to the instruction of multiple counsel and the engagement of a Silk. You can see that the last box talks of whether the case features “substantial complicating factors of gravity, sensitivity, complexity or responsibility which could not be adequately prepared and presented other than by Queen’s Counsel”. This is in reality the test as to whether a QC is engaged to prosecute the case. Was William Roache’s case more complex than the majority of sex cases that pass through the courts? Was Lord Somerset’s domestic violence more grave than the domestic violence perpetrated in a high rise in Hulme? It is difficult to say with certainty but it certainly raises the simple question – are these cases being allocated Silks because of the fame or status of the accused?

A case could be made out that the status of the accused may make the case one of greater sensitivity, if you read sensitivity to mean invoking interest from the press and therefore the public. However it is difficult to see how this impacts upon the preparation and presentation of the case. If the answer is that these cases are being allocated Silks due to the status of the accused then that is something of concern to us all. Why should the alleged victim of a non-celebrity be any different from the alleged victim of a soap actor? Why should public money be spent in this way? Why would the CPS instruct a junior advocate to prosecute the murder of a spouse but a Silk to prosecute the assault of a spouse with a title?

If the answer is “public interest” then, and I have always firmly believed this, the greatest public interest is in the cases of the utmost gravity being prosecuted and defended by Silks. And by that I mean murder. The public have to see that cases involving the deliberate taking of a life, where Parliament has decreed that there will be a mandatory life sentence, are dealt with by QCs. If there is to be a benchmark as to the instruction of Silk it should not be the fame of the accused. It should be the mark of the nature of the case.

In an ideal world the majority of sex cases would be prosecuted and defended by Silks. In this world they are not. In those circumstances the deciding factor should not be the X-Factor rating of the accused.

Bigmouth Strikes Again

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.