Tag Archives: delays

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.  

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.