Tag Archives: judge

Sitting in the Dock of Delay

Some of those who walk through the doors of a court building as defendants are criminals. I would suggest the vast majority of them have committed some offence at some time. Quite a few have contributed in some way to them being there that day, whether it is by committing the offence they are charged with or by committing some offence in the course of their conduct or their conduct otherwise contributing to them being there. 

A significant proportion of them, however, are innocent. A greater proportion of them are of previous good character and are there due to the one error they have made in their lives. It is an error that they will be punished for but not something that wiped the good they have done off the slate. They are young men, with anxious parents, who will never again in their lives raise a fist in anger. They are people who gave into temptation in a coincidence of circumstance that will never again collide to propel them through the doors of the Crown Court. They are drivers who face a judgement because their error, their error that has been committed by dozens of un-prosecuted drivers, has led to a serious consequence and police involvement.  And they are people who are guilty of no misdemeanour at all. 

Once convicted, these defendants will be punished. Once convicted they may be subject to piercing criticism of their conduct. And rightly so. But until such time as they are convicted, they remain just one component of the criminal justice system. 

Now I throw my hands in the air in frustration when I hear about “customer surveys” or “consumer feedback” when talking about court users. People do not choose to partake in the criminal justice system. So they are not consumers or customers yet they are fellow human beings. And as such they all deserve to be treated with respect and consideration. Witnesses, complainants, victims and defendants all deserve being treated as we would wish to be treated by others. 

Over time I have witnessed the criminal justice system trying to do much better when it comes to dealing with people. When I began my career I would go so far as to say that the system, and those professionals that operated within it, treated  every other actor with considerable disdain. Where we thought we acted with a degree of sang froid we were in fact being aloof and arrogant. We mistook disdain for detachment. Gradually things have improved with consideration being given to witnesses and their understandable needs. I am not suggesting that it is perfect but the system has worked to improve.

That improvement, however, has not been extended to defendants. So you have the situation where young men of previous good character stand in the dock in their suits on the day when their trial was due to be heard but has been cancelled at the last minute, and refixed nine months hence, to hear the Judge observe that at least no witnesses have attended because the case was pulled the night before. Some Judges will apologise to the defendants. Most do not. 

The fact is that the defendants’ attendance in those circumstances is otiose. They have probably already taken the week off work. They will already have waited a year with this case hanging over their heads. And the reason for the further delay to their case is not because they have exercised their right to deny the offence they are charged with. The further delay is because the courts are under resourced. 

For all the talk of Brandon Lewis announcing that the 28 day bail regime will bring about less delay and uncertainty for the arrested it is just talk. All it means is less people released on bail and more people just released pending further investigation. Like most Government initiatives it is all talk. Talk usually focused on making it sound like it is good for the victims of crime but it is just that. Talk. Talk that politicians hope appeals to voters but talk that is not backed by action to tackle the real problems that beset the justice system. 

Whilst the politicians fail to put our taxpayers money where their duplicitous mouth is, the system creaks on with inevitable delay. And as those delays impact upon all involved the very least we can do is treat everyone with consideration and dignity. Even those in the dock. 

Throw Me A Bone

On Monday I was meant to start a trial. Unfortunately the trial was listed before a Judge who was part heard until Tuesday. Courtrooms and trials are a little like runways and airplanes that are coming in to land – two into one just doesn’t go. 

So we were given a new Judge to start before on Tuesday morning. As it turned out it was Tuesday afternoon as our new Judge also had other cases to deal with. 

This delay is not what this blog is about. But it is important background information. This blog is about Thursday. 

On Thursday I had a PTPH which was very likely to be a guilty plea. That PTPH was listed in the same court building as my trial. It was likely that once the plea had been entered there could be a stand down report and the defendant could have been sentenced there and then. 

The problem was that my jury was not going to be going out until the Friday. The trial took almost exactly three days from opening speech to the jury retiring. Had I even got underway at some point on the Monday I would have been free for my PTPH. 

My clerks and I thought it was a good idea to ask for the PTPH to be moved. Our first port of call was asking for consent from the CPS locally. In this instance it is only polite to ask because we all know it is also pointless. They never agree. 

So we sent a written request to the Court. We thought it polite to ask them. Yet it is also almost as pointless. This Court does not agree either. Even when the reason I cannot do the PTPH is because their listing has caused me the difficulty. All I was asking for was that it be moved from Thursday to the following Monday or Tuesday. 

The Court were prepared to list it at 945. And frankly I took a huge risk and did the case because I was so hacked off that the Court had refused to move it that I was quite prepared to stand my ground when it all went wrong, which, of course, it did. Client arrived at 10 and the case was called on at 1020 with the only thing that saved me from being in a trial and a sentence at the same time was the fact that the lower court had totally cocked up an associated committal for sentence. 

So what are the consequences of intransigent listing policy from both a CPS branch and a Court? Firstly they are financial. The trial that did not get into Court on Monday had already been adjourned through lack of court time previously. So, as I was prosecuting, that equates to one previous mention fee, then a mention fee on the Monday the case wasn’t reached and then a free day on the Wednesday as that was the second day of the trial. 

When the case had previously been adjourned it had been refixed in a slot in my diary. The Court did not like that date so it was relisted and forced in. The nature of the case was such that I had to stick with it so I returned another trial that was listed that Monday. And, as inevitably happens, as I sat around the robing room whilst I had no prospect of getting on, my other trial cracked. 

And, as is also nearly always the way, because my jury only went out on the Friday I had to miss another PTPH in another court centre on the Friday. That was a tad embarrassing because that Court had been accommodating and reasonable and had previously moved my PTPH to a date when I thought I could do it. So someone else had to go along (an appearance which comes out of the fixed fee) and I had to pen an apology. I also had to draft the documents required for the PTPH I was absent from and fill in the form. 

The second consequence is that I ended up almost letting down one solicitor and actually letting down another. I think some Judges believe that work still grows on trees. It does not. Not these days, not in this market. Not being there for things like PTPHs is the sort of thing that can stop solicitors using you, no matter how good they think you are at the job. Gone are the days when I went to court with a fist full of PCMHs. 

The final consequence is that it erodes a little bit more of the goodwill. I know that the CPS will not consent to moving cases of this nature. It is making us all a little less inclined to help when they need it. I know that the Court will not move such cases, even when my non-availability is also their fault. And that makes me more prone to take risks with listings, more likely to keep courts waiting and less likely to add oil to the wheels of the system. 

I have known that the Bar are at the bottom of the pile for a very long time. Our availability should take second place to the efficient running of the judicial system and things like the needs of vulnerable witnesses.  But the efficient running of the system would also, from time to time, benefit from throwing us a bone or two. 

Better case management might benefit from a tiny little bit of sensible management of the players involved. 

Going Digital

I embrace technology like an American President with no heed to etiquette embraces Her Majesty. On occasion I embrace the wrong technology, like mini discs instead of MP3s or hard drive DVD players instead of iPads. When I have caught up I like to use technology, so Archbold is no longer carted around in my bag with its tissue paper pages but nestles happily in my iPad, alongside my sentencing guidelines and espisodes of Dr Who. I have a blog, Facebook, Twitter and even Tumblr. I draw the line at Snapchat, which may be a product of my suspicion of people who would want to send pictures that disappear. 

So I welcome the advent of DCS and PCU wifi. This is a huge step forward for the criminal justice system and is a laudable achievement. I reserve judgement on PTPHs until I experience them in all their glory. Yet, in theory, I raise a hypothetical three cheers for the use of technology in our courts. 

And there is the rub. I welcome it in theory. There will be teething problems. It is the responsibility of all to iron out these problems. I worry about being able to take the necessary equipment on prison visits into establishments which currently will not allow me to wear a watch. I wonder how people that do not embrace technology are going to cope.

My greatest fear is the existing infrastructure. The system relies upon technology and the Internet. What if this goes wrong? What are the chances of it going wrong? How frequently could it go wrong sufficiently to cause problems?

When the system is rolled out in all its glory, when it is fully implemented, paper will not exist. Statements, photographs and documents will whizz between Judge, jury and counsel with the same magic that Mike TeeVee whizzed through Wonka’s chocolate factory. 

Is the internet being “down” going to be the new burst pipes? I experience problems with my internet at home. From time to time it disappears and Mrs VFTN and I have to rely upon Victorian ways of passing the evening, like conversation. Is there a Plan B if the internet vanishes due to the provider or equipment failure? (In Court, not in the VFTN household).

Is this a problem worth worrying about? Experience tells us that we do have reason to worry. Past performance is no guarantee of future prosepcts for investments but they are a pretty good indicator for Government IT projects. And it is not a happy history. The familiar tale is an interesting combination of being over-budget and under-resourced at exactly the same time. 

I am currently going about my business in one of my regular haunts. Every morning I log my details on to the Xhibit system against the cases I am doing. This allows the court to know who is who and where they are. It expedites payment. It allows the public to look at screens adorning the building to find out what cases are in the courtroom and where the court are up to in the list.

For the last week or so the screen outside the courtroom has had a piece of paper sellotaped to the front of it. The paper displays which cases are in the list because the technology has gone wrong and we are having to make do. We have gone from paperless to papering over the faults.

Fans or otherwise of Alanis Morrisette will appreciate the irony of this irony. Digital working in the courts could be a wonderful thing. If it goes wrong there could be a lot of empty screens, blank faces and wasted days. 

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”…..



What’s the Point?

You cannot deter people from committing crime. This is, I know, a BIG statement. It is also entirely unscientific, has no basis in research whatsoever and is probably wrong.  

Yet this is what a look around life tells me. Everyone knows that motoring offences carry points on your licence, a fine, increased insurance premiums and the possibility of a driving ban. Yet most drivers offend, whether it is gambling on the drive home after two pints or the almost ubiquitous speeding, the prospect of punishment does little to deter people who would otherwise describe themselves as law abiding. 

Burglars know that prison is the likely consequence of offending. Sentences for burglary seem to steadily rise. Yet people still burgle. They are prepared to gamble on the prospects of getting caught rather than on the consequence of getting caught. Which may be a gamble that is as simple as odds and evens, if stories about Scence of Crime Officers being deployed dependent on house number are right. If you want to deter burglars, do not boost sentences, boost clear up rates. 

And then you have those who are desperate. Drug users, who knew that drugs were bad for them (and before you tut and get all “they knew the risks and are the author of their own misfortune” you should put out your cigarette, put down your pint and leave that diabetes inducing doughnut alone) and knew that they were illegal offend because they see no other way. It is an offence committed entirely in the moment, thinking little of the consequences and thinking only of the need they have. Replace drugs with poverty and the drivers for crime are often the same. 

This is not to say that punishment is wrong and has no place in the Criminal Justice System. Clearly actions have consequences and a democratic society requires proportionate punishment for those that transgress our laws. The key word there being proportionate. And that brings me to the Criminal Courts Charge. 

From time to time in my life at the Bar I have witnessed some pretty daft pieces of legislation. I have experienced sentencing changes that were a nonsense. I have seen the folly of improbably harsh punishments such as IPP. It is difficult, however, to recall anything quite as arbitrarily unfair and impractical as the Charge. 

It is not as if the politicians had no clue as to how daft this was. I have lost count of the number of times Judges explained the Victime Surcharge with a degree of bemused exasperation to men and women who had little prospect of paying the hundred and odd pounds that now fell due. And, on occasion, have seen a Judge fall somewhere in between embarrassment and mirth in declaring that the Surcharge bites on someone they had just sentenced to 24 years in custody. 

But the Charge takes the biscuit. It wins the prize for political stupidity. 

Let me give you an example. I saw a man being sentenced last week. He was a recidivist, without doubt one of those men who has existed throughout time. A man for whom mental health difficulties, personality disorders, circumstance and sheer unpleasantness meld together to fix him firmly as one of society’s wrong-uns. 

He was being sentenced for a miscellany of relatively minor offences. One of them included a Bail Act offence. He had, during the currency of the proceedings, been bailed “within the precincts of the court”. Being the man that he is he failed to heed the terms of that prohibition. He wandered out of the building, he failed to return on time and proceedings were delayed until he graced the court with his presence (albeit that he did come back the same day, just late).

This falls somewhere at the lower end of Bail Act offences. It undermines the system and needs punishment. So the Judge imposed some relatively short custodial sentences and marked the Bail Act offence with two weeks imprisonment to run consecutively.

Then came the kicker. The hearing that he had wandered off from had taken place on 14th April. Which meant he qualified for the Criminal Court Charge. A whopping £900. 

I have no words that can accurately describe the look on the Judicial face when this was brought to the Judge’s attention. The one thing I can say is that the look was not in the least bit judicial. You could read in the Judge’s dark demeanour that he did not like having his hands tied by the imposition of a swingeing financial penalty outwith his discretion. You could see that the Judge understood that there was no prospect of this man ever paying this sum, unless he committed more crime in order to pay it. 

The taxpayer is well served by the work of the courts. A democratic society will never rid itself of crime and needs crime to be punished. But society is badly served by something as pointless and arbitrary as the Charge.

Would the defendant in my example have obeyed the Judge’s order to remain because he knew he faced a £900 Charge? Nope. Prison did not deter him. He just is not built that way. Is the taxpayer ever going to get £900 from him to pay for the part of the proceedings related to the Bail Act Offence? Not a chance of it. Has the imposition of this Charge led to a layer of administrative cost in recording the Charge, monitoring its non-payment and compiling statistical tables related to its income generating performance? Absolutely. The taxpayer will end up paying more in relation to this offender because of the Charge. Admittedly only a few pounds more, but what a waste of resources. 

As an aside, had this man leapt onto the bench and murdered the Judge on the 14th April and subsequently pleaded guilty his Charge then would have been……exactly the same. £900. Nothing brings the court system into greater disrepute than something which causes it to descend into farce. 

That the punishment should fit the crime is an expression of an innate truth. The Charge is an expression of a policitian’s inane folly. If the Charge has to remain a feature of the legal landscape make it discretionary. Better still, scrap it all together. 

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.

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.