Tag Archives: Prosecution

Assisting the Court

When I was in my pupillage I witnessed an exchange between my pupil master and a Judge. My pupil master was prosecuting a sentence. The Judge asked him to identify the features of the offence that aggravated the sentence. My pupil master declined and instead indicated that he was in a position to identify those features which were capable of aggravating the sentence, whether they in fact aggravated the position was a matter for the Court. The Judge was bad tempered, he responded that “if Counsel was not prepared to help me by identifying which features did aggravate the sentence then you may as well sit down”. My pupil master resumed his seat. 

I learnt many valuable lessons in pupillage, not the least of which were some of the best places for lunch near to each of the courts on circuit. The exchange above was one such valuable lesson. Sentence is a matter for the Court, not for the prosecution. The prosecution are not there to make sure that the Court passes the longest sentence they can achieve, they are there to make sure the Court passes the appropriate sentence based upon all the information properly available. 

Listening to some prosecuting advocates recently I am beginning to wonder if something has changed. I very much appreciate that the prevalence of sentencing guidelines has slightly altered the dynamic. No longer is the prosecution advocate only to speak about sentence when spoken to about sentence. The advocate should bring the guidelines and guideline cases to the attention of the court, identifying the features of the offence that are capable of amounting to aggravating and mitigating features (albeit I still place emphasis on the capable of amounting to).

What I note is that so many prosecution advocates seem to consider it their job to get the sentence as high as possible. They strain every sinew to identify features that get the offence into the higher categories with submissions such as “two punches are a prolonged attack” and a single room of a domestic house given over to a cannabis farm amounts to an operation on an industrial scale. 

It is almost as if they are conducting a barter in a market place. Start high and hope you get lucky or aim high and then settle when you get a bit knocked off. This is not the role of the advocate when sentencing. Persuading the court to pass a manifestly excessive sentence is not a plus, you have partly failed in your role if you allow the Judge to fall into error in this way. 

We operate within an adversarial system yet with the caveat that the prosecution are not partial. If, as a prosecution advocate, you set out to try to persuade the Judge to impose the heaviest sentence you can get you are one step away from being the “win at all costs” prosecutor. And that brings us one step closer to the suppression of evidence and Manitowoc County. 

Assistance to the Court on the application of the guidelines should be exactly that, not an opportunity to ratchet up the years. The approach of the prosecution advocate should be reasonable and proportionate, being neither desirous of a swingeing sentence nor unduly lenient. 

You may be representing the prosecution but you are first and foremost an agent of justice. That may sound pompous. That may sound an unrealistic ideal. When it comes to sentence, it should be at the forefront of the mind of the prosecution advocate. 

CJS GTi

A real imbalance has developed in the Criminal Justice System. It is leading to delays and injustice. It is state sponsored and judicially ignored. And it has to be cured.

In the legal landscape of today the defendant is expected to make his decision on what plea to enter before he knows the case against him. If a defendant does not plead at the very first opportunity then she loses credit. This is rigorously enforced by a judiciary who have to deal with reduced sitting days and expanding court lists. The government mantra is “never mind the quality, feel the speed”.

A defendant who fails to mention something in interview? Evidence of their guilt. A defendant who fails to disclose something in their defence case statement? Evidence of their guilt. Fail to disclose the details of a witness? Potentially evidence of their guilt.

But what of the Prosecution? Yes I know the Prosecution have the whole burden and standard of proof thing to overcome. And I appreciate that some custody time limit issues can be tiresome. However in the more recent raft of directions and legislation aimed at expedition the Prosecution have little at stake when it comes to their case preparation.

The other day I appeared in a PCMH where the Prosecution had served the papers the day before the hearing. It was pointed out that they were, in fact, only ten days late and, in the current climate, that was actually pretty good. And no one demurred from that observation. Ten days was, in the generality of things, a short delay. The Judge observed that the situation was “lamentable” and adjourned the PCMH. What else happened? Nothing. Counsel for the Crown gets a whole four days to suggest edits to the videoed witness interview and the defence have three weeks to prepare for trial.

It is the norm, not the exception, that the papers are served late. Judges used to insist on adjourning PCMHs in Manchester if there was no defence case statement. Now there simply is not time for one to be prepared so that particular direction is now forgotten. If it were to be enforced there is barely a PCMH that would go ahead.

It is not just the practicalities of getting the case moving where problems occur. Not only is there an indecent distinction between the alacrity expected of the defendant and the tolerated sloth of the Crown but the Prosecution are allowed to make decisions about what goes to trial without any check built into the system. I am not particularly dealing with trials that look like losers but the decision not to accept reasonable pleas.

The reality is those decisions can be taken with impunity. Occasionally you may get a grumpy judge demanding that the lawyer comes to court. However the system does nothing to encourage sensible and pragmatic decision taking. What is the answer? Costs? Well that is just moving money around. The idea is to try to get the system to be more efficient and thereby save costs. In any event the wasted cost provisions have been rendered toothless to deal with inefficiency. Perhaps a defendant who is only convicted of what he pleads to or has offered to plead to after there has been a trial gets 50% credit. Or the days between the offer and the verdict count towards their sentence. Perhaps an element of Mitchell creeping into crime – if the evidence is not served the Crown cannot rely upon it.

Probably crazy ideas but something has to be done. If you want a car to go faster you do not fuel inject only one of the cylinders. If the Government were really serious about speeding up justice for victims and introducing cost saving efficiency, the Prosecuting authorities would also be subject to effective sanction.

Bigmouth Strikes Again

I am about to quote from a document that was created on behalf of the CPS. I guarantee it is accurate. It was created for a case in Manchester and is currently pinned to the wall of the Crown Court robing room. The document reads:

The Crown asks the defence to indicate which of the exhibits they require reproducing. The Learned Court will be aware that there will be a costs implication to the public purse by the production of copies of the said exhibits and at the sentence hearing the Crown will raise the issue of this cost for each and every one of the exhibits required to be served in the light of the guilty pleas entered.

Now pause for a moment. I am not making any comment about the particular circumstances of that case as I know nothing about it. But pause and think what this is saying about the state of criminal justice in this country as we enter 2014.

The state brings a case against an individual. The prosecution disclose the material they base their case on. The prosecution also have a positive duty to disclose information that assists the defendant in the preparation of his defence. And that includes in relation to sentence. What this document seeks to do is to limit the opportunity of the defendant to see the evidence upon which the prosecution base their case. It throws a burden on to the defendant and the defendant’s lawyers to think very carefully before they ask for copies of the exhibits in the case against them. It is a burden backed up with the threat of sanction, of either the defendant or their lawyer having to pay costs.

Now I firmly believe that no court would impose such costs. I also believe that the CPS are not trying to withhold anything. However it is indicative of how low our criminal justice system has sunk, how beholden effective justice is now to cost, that the CPS would even contemplate such a suggestion.

So the CPS feel that to save costs the defence need to be able to justify in advance why they should see the evidence in the case where they have pleaded. It is not farfetched to say that in exhibit-heavy cases things can often emerge from unexpected places. Some thing which puts a different slant on the case or demonstrates the hierarchy of offenders. Some times it may provide support for a basis of plea. Other times it is not there. You only know when you look.

I can appreciate that simple cases, a shoplifter who admits it in interview, can be dealt with without the need for a full set of papers. I do not like it but I am probably too traditional in thinking people should only plead after knowing the full nature of the evidence. The risk of an injustice is slight. Paper heavy cases are different. They are usually more complicated than someone stuffing some razor blades down their trackie-botts. Injustices do not just occur when an innocent woman is convicted. They also happen when anyone serves a day in custody more than is necessary or justified on the basis of the evidence. Which is why there should be no question about it all the evidence being served on all parties. In a case to which the above direction would apply the prosecution advocate would have the exhibits, I guess the Judge would have the exhibits and the defence advocate? Well,I guess they will just have to guess what everybody else knows.

If the resources are so stretched that the prosecution wish to cut corners in the service of their own case then how far does the corner cutting stretch? If you are not freely allowed the exhibits in the case against you, how confident can you be that the unused material will be scrutinised for material that assists you? I would never think that unused material is not properly reviewed but then again, I would never have thought that I was not going to see the exhibits as a matter of course.

On the document posted to the wall of the robing room somebody has written “now you have to pay to see the evidence against you.” Which is a joke…..isn’t it? Every day now I see some reason why the criminal justice system is a joke. It just isn’t a very funny joke. To quote from another, somewhat different, Mancunian source: “But that joke isn’t funny anymore, It’s too close to home, And it’s too near the bone, It’s too close to home, And it’s too near the bone, More than you’ll ever know …” The problem is that the public think this happens in other people’s lives and it does not matter until it happens in their’s.

The criminal justice system is not about delivering savings. It is about delivering justice. It is not about winning votes. It is not even about winning cases. It is about putting justice above all else. Above the cost of photocopying.

That is why this Monday 6th January barristers and solicitors up and down this nation are taking part in an unprecedented protest. This is not just about fees. The Criminal Justice System cannot withstand any more cuts. We need a Lord Chancellor who protects the courts, not one who plays politics with them. Perhaps the next time the Government want to publish some ad hoc statistics they may like to tell the public how much money they have taken OUT of the effective prosecution of cases. Maybe compare it to the amount of money they spend on things like Police and Crime Commissioners. In times of austerity the priority should be frontline services, not pointless initiatives aimed at “public confidence”, otherwise known as “trying to win votes.” Like the DPP, the Lord Chancellor should a legal, not a political appointment.