The Gender Brief Gap

Life comes at you in waves. I wrote this blog back at the beginning of March, ready to publish the moment that I had finished the trial I was in at the time. There are ways that seems a lifetime ago. Maybe even a different life. Events big and small meant that this blog did not get published then.

Now I have come to realise that often there isn’t going to be the perfect time to do all we intend to do, that waiting can mean missed opportunities. I know we all have a host of problems that we face but this was important enough to me to have written about when we all, perhaps, were someone else. And so it is still important to me now. Important things should not go unsaid.

There is a significant issue which is prevalent in the legal world. It is something which I have always known was there but has really become apparent to me in recent times.

A little background: Before becoming a QC a significant proportion of the work I did were sex cases. My diary also contained serious violence, fraud and drugs but I was not someone who went from one “big” multi-handed trial to another. I have written before about how the legal profession seems to value some areas of work more than others, that the diary of “paper heavy” fraud trial is seen as being better than back to back sex trials. It would appear that we have forgotten that complexity is not only measured by page count and ELH.

Now I am a QC, my work has changed. And it is that first twelve months of being in silk which has really brought something home to me – there is a gender brief gap. Men are disproportionately briefed in the “serious” cases that involve murder, guns, drugs and fraud.

I can go back to November 2018. In the run up to finding out I had been successful in my application and then in the period straddling my appointment, I was the junior in a couple of cases. From March I have, with the exception of one trial that was leftover from my junior practice, done a number of cases in Silk. From November 2018 the subject matter in each trial has been; Trial A – double murder in a gang war; Trial B – conspiracy to murder in a gang war; Trial C – a grooming gang; Trial D – murder by strangulation; Trial E – joint enterprise murder; Trial F – joint enterprise murder with a firearm. Interspersed amongst those trials have been other cases but I want to just focus on the trials. These are the cases where judges have granted certificates for the instruction of a QC due to the seriousness and complexity of the case.

Let’s now look at each case in turn:

Trial A – 7 counsel in total, 3 QCs and 4 juniors. Total number of women? 0

Trial B – 21 counsel in total. 7 QCs and 17 juniors (3 of whom took Silk during the case). 4 women. That’s 19% of counsel in the case were female.

Trial C – 7 counsel in total, 1 QC and 6 juniors. 3 women. That’s 42%.

Trial D – 4 counsel in total, 2 QCs and 2 juniors. No women.

Trial E – 10 counsel in total. 5 QCs and 5 juniors. No women.

Trial F – 17 counsel in total. 8 QCs and 9 juniors. 1 woman. That’s 6%.

In the cases trials I have conducted in the last 18 months, only 12% of other counsel have been female. Notably, if you take out the one sex case that I did, this falls to 8%.

None of the cases have featured a female QC who was instructed in that capacity (one of my fellow new Silks was in Trial B with me which we started out as juniors).

It is entirely possible that my workload is unrepresentative, it is a statistical outlier. Yet when I look at work to come I reckon there are probably something like 58 counsel involved in those cases. At the present moment in time there are two women involved, one who prosecutes a sex case and one who is the prosecution junior in a baby shaking case.

I also know that every female barrister that I have spoken to about this will recognise the picture I paint. They have the experience of being the only female in multi-handed cases. They know that their talented female counterparts are not instructed in such work in the same volume as their male colleagues.

There are factors at play such as the retention of females at the criminal bar but the attrition rate is not such as explains this. This is not a question of there not being females available to conduct these cases because there are. Plenty of them. And whilst I am most reluctant to even have to deal with this potential explanation, the women that are available are more than capable of doing the cases.

So why is it that a pool of available and talented advocates are not instructed in these cases? I am afraid I don’t know the answer. At least not a detailed answer.

In general terms it is clearly a problem that can correctly be labeled sexism. That sexism may be the attitudes of others (clients wanting a male barrister), structural (women are pigeon holed into sex cases), ingrained (courtrooms packed with men are the norm in these cases) or overt, direct sexism.

What I do know is that it is wrong. How do we put it right? I don’t know that either.

That is part of the reason for this blog. I am really interested in the suggestions of others for the solution to this issue.

One thing that occurred to me is that organisations need to be accountable for what happens. We need to be able to see what is going on. Whilst this will not make me very popular in professions which are already burdened with administration, is it not time that we required solicitors and barristers to keep and publish data on the instruction of advocates in certain cases? It is only by transparency, it is only by us all seeing the problem, will the solution emerge. It is only when we all acknowledge the gender instruction gap, will we begin to close it.

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.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.

Those Pesky Silks

Have you ever been sitting in the robing room and witnessed one of those exchanges between opponents where Prosecution counsel tells Defence counsel something that the police have done and Defence counsel flies off the handle? So you get lots of “outrageous!” exclamations interspersed with “abuse of process” laced with “prosecutorial misconduct” as Prosecution counsel tries to finish her sentence. Off flounces the Defence barrister in high dudgeon. Fast forward four days and you are still in the same chair in the robing room (probably waiting for the same floater to get on) and you realise the trial in which they were involved has reached the stage when the jury went out. Whatever the first, intemperate, reaction there was no foul play; the process cured any prejudice, should there have been any. 

We learn valuable lessons in life. I learn them from exchanges like that. I also learned one from the time of the infamous “Deal”. The lesson I learned there was that the mistake made by the CBA was not in striking the “Deal” but in doing so without a chance for the membership to have their say. Ultimately I was on the wrong side of that argument, but I was allowed my place in the process, albeit belatedly. 

So we now have the proposed consultation on a new payment scheme for advocacy in the Crown Court. And there have been a lot of instant reactions to it. I am yet to get to grips with the detail of the scheme, certainly in terms of the numbers in the boxes. The important thing is that this is a consultation document, not a final scheme. 

When I have mentioned this on Twitter some have responded by saying “History shows us how the MoJ do not listen to consultation responses…” I would respectfully disagree. History shows us that they may well be prepared to listen to responses on the detail of things. Back in the days of the Transforming Legal Aid consultations the “Next Steps” sequel was the consultation in which the proposals had been refined to take into account some of the concerns raised. I appreciate that we were not listened to across the board, but remember this consultation is not about a headline grabbing policy like BVT. This is all about the detail of a scheme. And this is your opportunity to have your say about the detail.

What you say about the detail is entirely a matter for you. I imagine, however, that a response which just says “This is a pay increase for the Silks, arranged by the Silks, at the expense of the Juniors and we are getting sold down the river like we did in the Deal” will not achieve much in the way of change. And it lacks a certain degree of rational thought. 

I was dead against the Deal. But it is history now. Quite ancient history. And has about as much to do with this proposed scheme as…let’s say, the solicitors revised protocols on dealing with new cases at the new Legal Aid rates. 

The reason why I say it lacks a degree of rational thought is because the Working Group that has been (as the name suggests) working on this scheme has not been some Bond like committee of super villains exclusively made up of Silks meeting in the CBA’s secret volcano bunker. It has comprised a cross section of the Bar, including Juniors of a wide range of call and this scheme is, in part, a product of their work. Their honest and freely given endeavour. Please do not fall into the trap of lamenting the avaricious Silks who have the ear of the Government. In doing that you are insulting many a fellow Junior that was worked on this scheme. And you are falling into the very worst of the Daily Mail style traps. 

Disagree about the detail. Do not rely upon a lazy “s’not fair” attack.

And that is very much the point. We all need to not rely upon the fact that the Circuit Leaders back it, that the CBA back it, that the YBC back it or that we take as read the good intentions of the Working Group. We all need to look at the detail. To inform ourselves of what is being proposed with, perhaps, less concern about how it has been proposed. 

So we need information. I note that, once again, Martin Chalkley has been crunching the numbers on behalf of the Bar Council. Such numbers will show why it is that this scheme is cost neutral. I anticipate that it may provide great detail about the impact it will have upon “baskets” of typical grad fees. We need that sort of information and I encourage the Bar Council and the CBA to release such detail as they have and as soon as they can. We cannot have too much information when it comes to our livelihoods and the future of remuneration. 

The detail is required because it takes more that just working out how much one case would pay under the old scheme versus the new scheme. It requires people knowing the impact it will have on them,  not on their best paying case but on every case. 

And the CBA, The Circuit Leaders and the Bar Council cannot rely upon “And so we pronounce it good, therefore it is good” to convince the masses in the style of religious leaders of yore. Where there is detailed concern, we need them to respond, to help us understand. I see that someone tweeted me last night with the figures that a Silk may now receive £37K for a 3 week murder where previously they received £17K. If that is right, I would like to know the thinking behind it. What the leadership must not do is retreat to the secret volcano bunker and adopt a siege mentality. If the rank and file are concerned it is no surprise. Allay their fears, do not dismiss them. 

I can see flaws in the scheme, as I perceive them. I will take time to think them through. For example I can see a problem with the definition of a cracked trial being reliant on the defence CoR. I anticipate that I will blog further on the detail (not that I suggest anyone should care, it just helps me stay sane). 

In looking at the detail though I will do so with one thought in my mind. There is no new money. My ire is not going to be directed at those who are trying to make this pot more equitably divided, even if I believe they have failed in that task. My ire will always be directed at those who choose to underfund the system. 

One Wheel on My Waggon

“Tell me why, I don’t like Mondays?” implored Bob Geldof and his rats.

The unlikely answer is because he and the rats were barristers from Boomtown Chambers. They had come to hate Mondays because they knew that Mondays were the embodiment of the problems that beset the criminal justice system.

I know how they feel. Recent Mondays have not been kind to me. Not that how my Mondays pan out really matters in the grand scheme of things. The problem is that recent Mondays have been rather unkind to victims, witnesses and defendants. I would go so far as to say they have been cruel to (and I am now going to use a phrase so beloved by our politicians) ordinary, decent people. 

Let us make like Marty McFly and do a little time travel. Hop aboard the Delorean that is my diary for the last month. The first Monday of the month had me scheduled to prosecute a drug trial. This is a little humblebrag, this was not a couple of street deals, this was a delivery of wholesale amounts of drugs. There was a hiccup in the week before the trial when it turned out my opponent was over running in his current trial and we all agreed that the trial could go back a day to the Tuesday. The Court demanded that the case be listed before a Judge for this application so along we all trooped for the Judge and the Listing Officer to confer and announce that the Court could accommodate the case if it was pushed back by a day. 

So the calendar ticked round to Monday. 5pm on Monday to be precise. That was when the call came – case pulled from the list for lack of court time. 

The call was so late that the CPS were not able to react to it. All the officers were at court the following day, including one officer that had travelled from London. So I had quite an audience to watch me mention the case and refix the trial for March 2017. 

“Hush your moaning,” I hear you say, “this is one of life’s little blows. Roll with the punches.”

The following Monday found me boarding a train at an hour which usually finds me in bed. I rattled through some spectacular English scenery. I rolled into a different city, grateful for the fact that my bag contained only iPads and laptops rather than all the files usually needed for a three week fraud. Later in the day I reversed my journey having popped into court for a grand total of about five minutes. Our Judge was part heard with his trial from the previous week for the whole of the Monday. And, so it turned out, quite a bit of the Tuesday too. 

This one is, I admit, a personal moan. This does not impact on ordinary, decent people just odd, indecent people like me. As every barrister will know no jury sworn on the Monday meant no significant fee paid for the day. In fact my fee did not cover my train fare. 

As it happened that trial went short for other reasons. Fear not, dear reader, I had a trial in my diary for the next Monday so the mortgage was still going to be paid. Can you see what is coming? My trial on the Monday did not happen. Listing pulled it on the Friday evening. Which was a bit of a sickener for me, but probably even worse for the witness who was due to travel to court in the North West from the South East coast. 

It would, would it not, be incredible bad luck for a fourth Monday on the trot to go wrong? So this Monday was to see me once again in a far flung court to conduct a trial. I was going to be accompanied by two other members of my chambers on a bit of a chambers outing to co-defend. And I suppose that, at least, made the job of the Listing Officer a tad easier on the Friday evening, as he only had one set of chambers to call and say that the trial had been put back by a day. 

So yesterday saw three members of my chambers, all self-employed people, sitting idle. Being idle allowed the three of us plenty of time to share our thoughts via text and email when our clerk was told that the case was not going to be heard on Tuesday either and we had now been pushed back to the Wednesday. So the three of us are at a loose end today too, like a barristerial version of Last of the Summer Wine. 

This is not just a case of lunaediesophobia. Cases get pulled every day of the week. And it isn’t just me. The third Monday in this little trot of bad luck saw four trials pulled in the same court centre. So what is causing this?

On one of the rare recent days when I actually went to court and did a case I found myself in a room in the court building. In that room was one of those trolley things that people use to transport great piles of files and boxes into the building. The trolley had a sign attached to it that read “Do Not Use. Flat Tyre.” Underneath the prohibition on use was the fact that the fault had been reported to the necessary authorities……in October 2015. And there it was, tyre still flat and not fit for its intended use. 

But perfect as a metaphor for the criminal justice system. We are running on a flat tyre. 

Due to my recent experiences of cases being delayed, pulled or evaporating I have been keeping a keener eye on the lists of recent times. And I have noticed a plethora of lists that look like this….

….or this……

This is replicated across the nation. I went through the lists for court centres that I know. On Monday mornings you will see Court Centres that have eight courtrooms are only using three of them. Buildings that could accommodate ten Judges have five sitting. Large cities will have five courtrooms occupied and nine sitting vacant, whilst having three floating trials. 

This is not a case for closing these buildings. The fact is that we have more than enough work to fill them and perhaps reduce the delay from offence to trial that can often be two years. The answer lies not in allowing defendants to plead to speeding cases online, that is not going to allow the sex case to be heard any earlier. It is not the answer to allow vulnerable victims to be cross-examined early in the proceedings, that is just going to clog up more courtrooms. 

The answer is more Judges. The problem lies in the fact that Courts suffer a lack of full time Judges and are not allowed to fill the gaps by utilising Recorders (part time Judges) with sufficient advanced planning. Judges have told me in open court that the reason why cases are not being reached is because, as is shown in the list for “Court 1” above, a Recorder has not been allocated. What is happening is that an email will wing its way around potential Recorders with only a few days of notice. So often the email will be seeking Recorders to sit a whole week, or two weeks or even three weeks, with less than a week’s notice. It is no surprise when there are no takers. One would expect Recorders to be amongst the busier members of the professions. And their diaries only collapse at the last minute, when their trial is pulled because no one else has answered the call to sit at such short notice. 

I would hazard a guess that every senior criminal judge knows that the delays in the CJS are nothing short of a scandal. I would like to think that they know they have the accommodation capacity to deal with more cases. I am confident that they know with the deployment of more part time Judges more trials could start every single Monday of every single month. Instead of banging the drum for pleading guilty when we do not know the nature of the evidence, the senior judiciary should be looking at the evidence of the lists and banging the drum for more resources that would allow better forward planning. When one cannot get a case into the courtroom, it is nothing short of embarrassing to see the championing of a mobile video link van. 

Like the trolley with the flat tyre that was reported nearly a year ago, nothing will happen unless someone takes responsibility for change. That is not something I can do, it is not something the CBA can do. It is something only achievable by those who can use their independence from humdrum politics to make the case that the system is failing society. It takes the people at the very top to be honest about the problems we face and to be realistic about the solutions. It takes advocacy on behalf of a system that is central to our society, advocacy which is conducted without fear or favour. Advocacy that is conducted by those who are entrusted with the privilege of ensuring that justice is done within our courtrooms.  

A Tale of Everyday Life

A courtroom somewhere in England. Her Honour Judge Christine Jones-Smith presides. The case is listed for mention with the defendants to attend from custody. The Prosecution are represented by Mr Justin Messenger. The defence are represented by Miss Fi Owens and the ever busy Miss Rhea Turner.

The case is called on and only one defendant is produced in the dock. The present defendant is identified and the parties are introduced. 

HHJ CJS: Miss Owens, where is your client?

MISS FO: I am told by the custody staff that he has not been put on the van. In fact my learned friend Miss Turner informs me that my client shares a cell with her client and when the officers came to their cell this morning they called upon the co-accused but, despite their insistence that they were both required, they only placed the co-accused on the bus. 

HHJ CJS: I see, a case of “your name’s not down so you’re not coming out”…. never mind…. it is only 10 am, still plenty of time to get him here….

MISS FO: I have made enquiries and it is thought he could be here by 3pm.

HHJ CJS: 3pm!?! 3pm!?! The prison is less than four miles from here. Who says it will take them until 3pm?

MISS FO: I spoke to the staff downstairs who work for 3PO. They spoke to GeeForceAnnie who are the ones that bring them here. It took a while for them to speak to SecurGroupitas who run the prison. Apparently the next GeeForceAnnie van available is one that is currently delivering someone missed from yesterday’s list at the other end of the County and 3PO cannot speak to that van directly, because it is not their van, so SecurGroupitas have to contact GeeForceAnnie head office to get them to arrange it. All of which takes time. Apparently. 

HHJ CJS: There seems little I can do about that so let’s see what progress we can make in his absence. Mr Messenger, this case is listed today to see if the problems that have beset this case have been ironed out. Now then, the defence have made several requests to have the exhibit in this case examined scientifically. The exhibit is a weapon is it not? In fact, a most unusual weapon. I believe the witnesses describe it as a “broadsword”. So Mr Messenger, has that examination now taken place?

MR JM: I am afraid not, Your Honour. 

HHJ CJS: Why not, Mr Messenger?

MR JM: Because we’ve lost it….

HHJ CJS: I’m sorry Mr Messenger, did you just say you’ve lost it?

MR JM: Not me personally, I am only the messen…..the conduit for that information. It has been lost in the Police Property Store.

HHJ CJS: A broadsword?

MR JM: Yes, Your Honour.

HHJ CJS: The broadsword in this case? How? How did the police lose a broadsword? I mean it’s not as if there has been a sudden spate of immortals running round shouting “there can be only one” in a Frenchly Scottish accent whilst trying to lop the head off total strangers, has there? There can be only one broadsword…in the possession of the police…you don’t just lose that in an officer’s desk drawer…

MR JM: No. It went into the Property Store. It was logged into the Property Store. The computer says it is still in the Property Store. But…..

HHJ CJS: What, Mr Messenger? But what?

MR JM: The Officer has had a jolly good look for it but can’t find it. 

HHJ CJS: Perhaps he should hang around the lake and see if any shimmering ladies emerge carrying Excalibur….Thankfully the last time the case was listed for trial it was discovered that there was, contrary to what the police had originally said, there was CCTV of the incident, if I recall correctly…

Miss Turner gets to her feet to assist.

MISS RT: Your Honour is quite correct. In advance of the last trial date the the Officer in the Case provided a statement in which he described how he had viewed the CCTV from the premises but that it showed nothing and was not capable of being downloaded. However on the day of the trial the owner of the premises provided a statement saying that the footage did show the incident and that it had been burnt on to a disc and handed to the same Officer.

HHJ CJS: At least that means we can see the invisible broadsword in action. Please be the bearer of good news this time Mr Messenger? Have we located the disc?

MR JM: Yes, Your Honour, there is a statement from the Officer. The disc was logged into the Property Store…

HHJ CJS: Why do I have a sense of dread, Mr Messenger? Was the disc lost by any chance?

MR JM: No, Your Honour. 

HHJ CJS: Recorded over with Coronation Street so the night shift didn’t miss it?

MR JM: No, Your Honour. It has…..

HHJ CJS: No, no, Mr Messenger, I am keen to guess. Is it in a format incompatible with any known playback system?

MR JM: No, You Honour.

HHJ CJS: Has it been mistaken for a broadsword and stored down the back of a radiator?

MR JM: No, Your Honour.

HHJ CJS: Come on then, enlighten me.

MR JM: It has been destroyed. 

The Judge indulges in some uncharacteristic eye rolling. 

HHJ CJS: How, Mr Messenger? How was it destroyed? No. Why? Why was it destroyed? In fact, both. How and why.

MR JM: The Officer asked about it at the Property Store and was told it was there. When he went to collect it three days later it had, unfortunately, been destroyed the day before. Apparently where an item is not listed as an exhibit or as unused material in a live case they are automatically destroyed after six months. It is a rigorously effective system. It is all in the Officer’s statement.

HHJ CJS: Can I see it?

Mr Messenger takes the opportunity to do his own eye rolling. He speaks deliberately and slowly. Each word is separately formed and clearly enunciated. 

MR JM: It. Has. Been. Destroyed….

HHJ CJS: NO! NOT THE FOOTAGE! THE STATEMENT. CAN I SEE THE STATEMENT?

MR JM: Yes, Your Honour, and a little bit of no.

HHJ CJS: Sorry?

MR JM: You may see the statement, but only in due course. At the moment you cannot. 

HHJ CJS: Don’t tell me Mr Messenger. Lost? Destroyed in game of Rock/Paper/Sword at the Property Store? Written on incompatible parchment? Touring the County like the missing defendant?

MR JM: Nothing so simple I am afraid. The CPS printer is broken.

HHJ CJS: But it was only last week that it broke down and was repaired.

MR JM: Again, a little bit of yes and a little bit of no. It certainly broke down last week but has not been repaired in the interim. And now it is more broken than it was before. 

HHJ CJS: Do they not have someone who can repair it?

MR JM: Not on the payroll, Your Honour. Rather than have a specialist waiting around to do the specific jobs that arise it is much cheaper to use outside contractors to come and do the work according to their experience and ability. You avoid pensions, sick pay and get to pick just the right person. 

HHJ CJS: We are still taking about printer repair are we? What has been done?

MR JM: The Caseworker present in Court contacted the Area Business Manager who is the person to whom such faults should be reported…..

HHJ CJS: And?

MR JM: The Caseworker was told to sort it out himself.

HHJ CJS: What do they expect him to do? Find a repair person or get out his screwdriver and do it himself?

MR JM: Not entirely clear Your Honour. The Caseworker did point out to the Business Manager that he was looking after two courts today and that Your Honour had nine mentions dealing with trial readiness where the relevant correspondence and memoranda were only available on the Caseworker’s laptop and he had no means to print out that information and ended the telephone call by asking whether the Business Manager also wanted him to shove a broom up his …… well, the conversation ended without the problem being resolved. 

The CPS Caseworker in court attracts Mr Messenger’s attention.

MR JM: If You Honour will forgive me for a moment, I am just receiving some instructions. 

Mr Messenger leans forward and has a whispered conversation with the Caseworker.

MR JM: It transpires that the contract to repair the printer is held by GeeForceAnnie. So perhaps the van that brings the absent defendant can also bring the engineer…..

The telephone on the Court Clerk’s desk rings. She answers it and conducts her own whispered conversation with a cupped hand concealing her mouth. Once she finishes the conversation she stands, turns to face the Judge and relays the information to Her Honour. The Judge sighs.

HHJ CJS: I have just been told that the Court does not have a Judge available to hear this trial tomorrow. I am also told that there are only four jurors not currently engaged on trials available. So we have no Judge, no jury, an absent defendant, missing exhibits and missing statements. Miss Owens and Miss Turner it would appear that we are missing most of the essential ingredients of a trial and you would say that it is impossible to have a trial tomorrow?

BOTH: Yes, Your Honour.

HHJ CJS: On the defence application I will adjourn this trial…..

Both Miss Owens and Miss Turner look a little bemused. The Court Clerk eagerly ticks the box on the monitoring form indicating that the trial was adjourned upon a defence led application.

This is not the first imagined Courtroom Scene I have written. But this is not totally imagined. They are all problems that have arisen in cases in which I have been involved. And yes, that included a lost broadsword. Obviously they do not all happen in each case but they happen with such frequency that there is something very obviously wrong in the system. Things that will not be solved by endless Practice Directions. If nothing else, you can also play “spot the Monty Python plagiarised lines”…..

The Con of Cons

I imagine that most people expect that the detection and prosecution of crime goes something like this – offence reported to the police, police come out and carry out all such enquiries necessary to identify the culprit or establish an offence has happened. If successful in detecting the crime then all the evidence is collated and submitted to the Crown Prosecution Service who decide whether the case should be prosecuted. If the case is to be prosecuted, any further evidence required by the lawyers is obtained. A jury or magistrate will then determine guilt or innocence on all the available evidence. 

When I first formulated that paragraph it had something in it along the lines of “in a perfect world”. I deleted that phrase. In a perfect world, there would be no crime. In a perfect world where the only scar on global perfection was crime, there would be confessions from all those who transgress. 

We are not aiming for some form of Utopia. We are aiming for a functioning society where the average citizen is protected from crime by effective detection and punishment. Actually that is not even just our aim, it is the duty of our Government. One of its very essential duties. 

We are so far removed from the basic response set out in the first paragraph of this blog that it is safe to say that the Politicians are failing the People. 

Why do I say that?

It is fairly common knowledge that the police do not investigate every crime reported to them. This is not the fault of the police service, they are not provided with sufficient resource to be of service. A few years ago someone smashed my living room window in the early evening. My call to the police never got beyond the civilian call taker. A while ago I prosecuted a case where one of the defendants made a bail application on a demonstrably false premise. He was arrested. He was interviewed. A decision was taken by the police that the further investigation required for charge was going to use too many resources. The case never got as far as a charging decision. Been a victim of fraud? Most likely to be chalked up by the police as a “civil matter”.

This is not, I repeat, criticism of the police per se. They have to make daily decisions about what to prioritise because they are not provided with the resources by the politicians to protect each of us from every crime. That is the inescapable truth. And the future looks even worse. 

If you are lucky enough to be the victim of a crime that is investigated, resources will also dictate whether the crime and offender are detected. The use of scientific evidence to determine the identity of the offender has been one of the giant steps forward in crime and policing. Fingerprints, DNA, cellsiting, the list is endless of methods used to detect crime. In the modern world, however, the overriding consideration is not the detection of crime but the deployment of over-stretched resources. The full scientific armoury will not be deployed in the hope of finding out whodunnit. It is a constant battle about where to spend the money and devote the time. 

When I was a junior barrister you would regularly find evidence of fibre transfer in cases of aggravated vehicle taking. Where lifts would be taken from the driving seat of the car and the small fibres left on the seat would be compared to the fibre in the clothing of the alleged driver. I cannot imagine that happening today, which probably explains the demise of Contract Traces. A forensic science provider which is now lost to the detection and litigation of crime. 

The same considerations apply to the use of resources when the case is within the court system. Countless times the lawyers, either the CPS or the barrister instructed to prosecute the case, will advise that some further evidence is required only to be told that funding has been refused. Some times you will prevail and get the evidence, other times you reach a dead end. I cannot tell you how frustrating that can be, frustration shared by the investigating officers. It feels like you are fighting with one arm tied behind your back. Trials conclude with juries and the judiciary hearing only the evidence we can afford to present. 

I am afraid that resources, or a lack of them, bring an end to perfectly viable prosecutions. I have experienced three serious cases that have not reached a verdict of the jury because of problems with disclosure in the last six months. Over stretched police officers have not been able to devote the time and resources required to properly collate and record unused material. Often, even in relatively complicated investigations, one police officer is doing countless jobs including that of disclosure officer. Reviewing lawyers do not have the time to review the material and rely upon imperfect descriptions on the shcedule. So things get missed. Trials are adjourned or ended because of problems. And those represent the good outcomes. Even more worryingly are those trials that reach a conclusion without the errors being discovered. 

These are straitened times. I wonder if the politicians realise what impact their decisions really have. Tough on crime and the causes of crime? Well these days, only if you can do it cheaply. When it comes to crime and punishment, doing it cheaply often means not doing it all. 

A Paying Customer

A letter written sometime in the nearish future.

Dear Lord Chancerlor,

recently I did a bad thing and had to go to court to tell the jury why I was not guilty. Sadly they did not believe a word of what I said and now I am doing 18 months (out in 9). That wasn’t all. At the end of the case the Judge said I had to pay a criminal court charge. 1,200 quid!

So, anyways, now I am thinking I am not just the defendant, not now I am paying to be the defendant. Now I reckon I am a “stakeholder”.  My probation officer explained to me about being a “stakeholder”. And I reckons that as a “stakeholder” I have some rights and stuff. The big right is I get to complain, so guess what this is? Yep, this is a complaint. 

First up is this. When the train is delayed you get a refund on your ticket. When your flight for a week in Ibiza is delayed you get some vouchers for a meal and a beer at the airport. Even on Ryan-whatsit. Well I was on bail for months before my case even got charged. And then I had to waits awhile for my first trial date. It was, like, an age. And don’t go thinking a voucher for a free meal from the court caff is what I am afters. For a start there isn’t even a court caff. 1,200 quid and I got a vending machine. 

No, you sees my trial was listed as a floater. I sat at court all day. For what? Nothin. We sank. We had to come back three months later. To float again. This time we did get on, but only when we got shoved off to another court building. Parking ain’t cheap you knows. I had paid to park all day and then had to go 17 miles down the road to get my trial. 

So, first up, I have included in this letter my car park ticket. Reckons you can knock that off my bill.

Before you goes thinking that’s it, just a car parking ticket, it ain’t. Yeah we got a courtroom when we moved buildings but we had to wait until the next day for enough jurors! Nearly wet myself when me brief told me that one. 1,200 quid for a trial by jury and you didn’t even have some jurors. 

Oh, and by the way, this second court didn’t have a caff neither. 

So I hopes you are going to compensate me for the delay. You know the Benefits people compensate you when they get it wrong. Now I am a paying customer it is time for you to put your hand in your pocket, you don’t seem to mind putting your hand in my pocket.  

However It wasn’t just the jurors. We had another delay because the CPS ran out of paper. No kiddin. The Judge had a proper fit. We had to wait until the next day for the jury to get copies of the interviews. The lawyers and the Judge kept talking about paperless courts. Didn’t seem to be such a good idea. 

So I reckons, when you work out my bill, you gotta come up with something for all the hassle I had. If I pay all that coin for something, you want it to work well. Oh and don’t think you can go sitting on my appeal neither. What’s the point of hearing bout my appeal against sentence half way through? And then chargin me for the privilege. Oh no. You want me to pay, you get me a quick decision. 

So you work out how much my bill is. I need to know so our kid can go out grafting to get the dosh together. 

And my padmate, Tariq, wanted to give you a message. He has paid his court charge. But now he’s got his POCA. And he says that the POCA guy goes that the money he gave you for his court charge is a tainted gift. So he wants it back. Well, they wants it back. 

Laters,

Johnny

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.

The Case for the Defence

There is much current debate about the size of the Legal Aid bill footed by the taxpayer. In an episode of typical disingenuity the Lord Chancellor has recently expressly stated that the public have the choice between Legal Aid and the NHS, that the £220 million that he looks to save would be spent protecting the spend on healthcare.

Now the point could be made that the Legal Aid budget has already contributed much by way of cuts with £200 million already disappearing from last year’s spend in this year’s projected budget. Or that slashing 20% of the criminal Legal Aid spend would not even cover one day of the nation’s spend on the NHS. Or that if we were to cut money to the NHS you would cut the spend on non-essential workers (lets say money spent on actors, hairdressers and leadership training courses) before you cut the income of the doctors and nurses who provide the quality of service at the coal face.

However I would suggest that Legal Aid is as important to the provision of welfare in this country as the NHS is. It is about time that the Lord Chancellor recognised this. Until he does he cannot perform the key function of his office. The provision of welfare is all about the provision of a safety net in times of need. Criminal Legal Aid falls exactly in to this category. People are provided with Legal Aid in criminal cases when the State chooses to prosecute them. Anyone provided with criminal Legal Aid would prefer not to have to need it, in so much as they would rather not have been arrested in this first place. So in criminal cases it is not the accused who goes out seeking Legal Aid,it comes to him.

One of the problems that the legal profession face in firmly establishing the credibility of Legal Aid as part of the safety net provided to all taxpayers is the notion that it is only criminals, often repeat offenders, who benefit from its provision. I for one would hesitate to introduce blameworthiness into the provision of welfare. Should a smoker be provided with free cancer treatment? The obese with diabetic assistance? Of course they should. One of the difficulties is persuading the public that prosecution, like ill health, is something that could befall them as much as those who very obviously are the authors of their own misfortune.

Let me give you some examples of the way in which it is not just the guilty that find themselves in need of Legal Aid. These are actual cases that came before the courts in Manchester in recent times. The first was well publicised at the time (see here). I know the defence advocate in the case. A woman in Greater Manchester was subjected to the horrific ordeal of rape. This involved her being raped as she walked home by a man unknown to her. The police collected samples from her that could be tested for DNA in a hope to identify a suspect. A positive result came back. A man in the South West was identified. He was arrested, denied the offence and denied he had ever even been in the area. He was charged with rape and remanded in to custody. He was provided with the assistance of a solicitor and a barrister. There was no other evidence against him but it would be presented to the jury by the prosecution that the presence of his DNA in intimate samples taken from the victim could mean only one thing – his guilt.

The case was prepared for trial. Other evidence obtained showed that the defendant was in the South West the morning following the offence but such as still gave him a window of opportunity to commit the offence. A combination of enquiries made by the defence and the officer in the case being concerned by this aspect of the case led to a re-examination of the scientific evidence in the case. It transpired there had been a huge error. A tray used in the laboratory that tested the sample had been previously used in a DNA test that related to a relatively minor offence of violence in which the defendant was a suspect. This led to his DNA remaining in the tray and contaminating the sample from the victim. His innocence was only discovered days before his trial was due to start. He was an innocent man who needed Legal Aid.

A further example happened in the case load of the same defence advocate. A woman worked in an office. One of her colleagues got married and went on her honeymoon. Sadly whilst she was away the colleague’s house was burgled. A games console was stolen in the course of that burglary. The games console had been in its original box but the burglar had removed it and left the box behind. A scene of crime officer provided a statement that stated the box had been tested for fingerprints and a print matched the fingerprint of the defendant, the woman who worked in the office of the bride.

This came to light because the woman in the office had, when she was much younger, been involved in an argument in the street which had led to her arrest and caution for a public order offence. Her life therefore had not been completely blameless but that was the only transgression. That meant that the police therefore had her fingerprints on record and the match was made. She denied the offence, denied that she had ever been to her colleague’s house, had never handled the cardboard box and could not account for the presence of her fingerprint.

Once again this case came to the Crown Court. One can easily imagine that everyone involved, her lawyers and the CPS, thought that there might be a guilty plea. Fingerprints are unique. The presence of a fingerprint in a dwelling with no innocent explanation is clear evidence of the person’s involvement in the burglary. However she pleaded not guilty and the case was adjourned for trial. Legal Aid provided her with lawyers and with funding to have the exhibit examined to double check it was her fingerprint (such mistakes being unheard of but it required independently verifying). Those investigations discovered that when the test for fingerprints was undertaken a number of items were examined under the same reference number. So whilst that reference number did relate to the console box it also related to a good luck card that the victim had received from her colleagues at work….

Those two cases are examples where the independent scientific evidence pointed strongly at the guilt of someone entirely innocent of the charge. As an aside it must be a worry what may happen in such cases in the future if the advocate is under financial pressure from an employer to deliver the more lucrative guilty plea. However the vast majority of taxpayers would be comforted by the fact that their DNA would not be floating around labs or that youthful indiscretions had led to their fingerprints being on a police database.

So let me move on to the next illustration. A hard working man of entirely good character worked as a satellite television engineer. He installed a new box in the house of an elderly couple. He asked to use their toilet. When he had left the woman of the household discovered that a valuable necklace was missing from the top of her bedroom cabinet where she had left it that morning. The police were called. A thorough search did not turn up the necklace. Both husband and wife gave statements that the necklace was on the cabinet moments before the satellite engineer arrived. The door to the bathroom was next to the door of the bedroom. Moments after he left they discovered it was missing. The man was arrested. He denied the offence but was charged with theft. Again he was provided with Legal Aid for representation at the Crown Court. No doubt he was relieved to be provided with such assistance. And that was assistance provided to an entirely innocent man. Decorators found the necklace behind a radiator in the elderly couple’s bedroom a few weeks before the trial. A man who had never been in trouble had simple been in the wrong place at the wrong time. Circumstances conspired against him. Should he have faced those circumstances alone? Should he have paid for his own defence? Should he have had a lawyer assigned to him by the state of only “acceptable” quality?

My final example is a man I represented. He was a retired engineer. Later in life he and his wife had a daughter. It would be fair to say she was the apple of his eye. She went to university. Whilst away from home she met and fell in love with a man. Sadly he was entirely unsuitable. Not just in the way that many parents may find a child’s choice of partner not what they had hoped for. This man was just bad news. He introduced the daughter to drug use. He assaulted her. After many anxious months the daughter had the sense to leave the boyfriend and return home. The parents were overjoyed to have their daughter back and set about repairing the damage.

The boyfriend would not give up. He tried contacting the daughter. He began turning up at the family home. The father would bar his way and, after often heated discussions, would send him on his way. On one such occasion the father pushed the boyfriend. The boyfriend produced a knife. A tussle ensued. The father disarmed the boyfriend but the boyfriend kept on coming. In the doorway to his house and fearful of what may be about to happen the father jabbed the knife in to the thigh of the boyfriend. No doubt surprised by the level of resistance the boyfriend hobbled away. Straight to the police. He made a malicious statement that told of how the father had pulled a knife on him and stabbed him. The police visited the house and discovered a knife with the boyfriend’s blood on it. Remarkably the father was charged. He had a trial. He was acquitted. All due to the safety net provided by Legal Aid.

So whether it be by scientific negligence or paperwork error, whether it be by a genuine and honest belief mistakenly held or malicious falsehood innocent people can find themselves facing a criminal court. It matters not whether they have never been in trouble before. Of course such examples are at the extreme end of the spectrum. For every one like that I have witnessed I have represented dozens of repeat offenders who are guilty. And there are those in between. People who would never have thought they would be before the courts but end up there because of a combination of circumstances, sometimes because they are guilty, sometimes because they have done something wrong but not what they are charged with or sometimes because they are unfortunate to find themselves wrongly accused of crime.

The point is that democracy requires the efficient and proper prosecution of those guilty of crime and protection for those falsely accused. The method of determining which category an accused falls in to requires them to be represented. It is not possible before the process commences to determine those who are deserving of assistance because they are innocent and those that are not because they are guilty. That is why we all have an interest in maintaining an effective provision of criminal Legal Aid. Like all safety nets you hope you never fall in to it. Should the unexpected happen you would have every reason to be grateful that it catches you. The professions can work with the Lord Chancellor to provide further savings. But he has to place the preservation of this vital aspect of society at the forefront of his approach. Not the current attitude of seeking to turn public opinion against the system and those toiling within it. Legal Aid is something which the nation should be rightly proud of. I believe that they are.

If you agree that criminal Legal Aid is a vital component of a civilised democratic society please sign the e-petition here. Thank you.