“For last year’s words belong to last year’s language
And next year’s words await another voice.
And to make an end is to make a beginning.”
― Little Gidding, T.S. Eliot
Fashion dictates that the first written offering of a new year be contorted around a vague theme of resolutions and renewal. And those who know me would surely attest that if I am anything, it is, in the words of Muswell Hill’s finest, a dedicated follower of fashion. So there, above, is your inspirational New Year quote. We can even all pretend it was plucked fully-formed from my repertoire of feel-good literary bon mots, rather than copy-and-pasted from Google.
With that out of the way, I can reassure that what I am about to say is in no way symptomatic of any New Year’s resolve to change. It is not a January volte-face, nor does it represent an overspill of festive goodwill. I in fact said it, fleetingly, guiltily, sometime in mid-December when this would have been an achingly current blogpost had I got round to it. But it does need saying. And here it is:
Philip Davies MP was right about something.
The date, for future annual commemoration, was 15th December 2015. The day that Director of Public Prosecutions Alison Saunders appeared before the Justice Select Committee to face questioning over the performance of the Crown Prosecution Service. I have previously politely queried Mr Davies’ suitability for a position on this committee, in light of various observations he has made on the topic of criminal justice. But here, at this hour, with the DPP at his mercy, he triumphantly made what I am sure he would agree was his first ever positive contribution to public life.
Labelling her “complacent”, Davies told the DPP this:
“One of the most depressing things anyone can possibly do is go to court and see the standard of the crown prosecutors – particularly at the magistrates’ court, where it is often little more than a shambles. You have got crown prosecutors who are literally reading the case file out for the first time.”
“It is a shambles. If a victim is actually sat there coming to see their bit of justice being done, what on earth must they think when they see a crown prosecutor reading out the thing for the first time, or not even having the files?”
I’ve said before that I recognise the invidious position that the DPP finds herself in. I don’t expect her to get to her feet and angrily boom that relentless budget cuts have kicked the vital signs out of the CPS, and that it’s a miracle some days that anyone gets prosecuted at all. But, again as I’ve said, it is disappointing, to put it mildly, that the DPP continues to deny that any problem existed.
The DPP’s retort to Davies recounting an occasion when he saw a prosecutor in court shuffling his papers as he struggled to find the right file was to point out that, ACTUALLY, one wouldn’t see papers being shuffled as mags’ cases are now all digital. So there. Zing.
Allow me to lay some truth on yo. I’ve spent many a cursed day prosecuting in the magistrates’ courts as an agent. Agent prosecutors are independent solicitors or (usually junior) barristers paid £200 a day by the CPS to prosecute cases when the CPS is short on staff, or where they realise at the last minute they’ve massively smurfed up. You are allocated a courtroom for a day, and prosecute everything that is listed in it. This will either be a “list’ court, in which you could have anything up to 50 “quick” cases, such as first appearances, allocation hearings (hearings to determine whether a case should be heard at the magistrates’ case or the Crown Court), onward remands (short administrative hearings for defendants in custody), legal applications and traffic offences. Or, more commonly as a barrister, it will be the trial court, in which listing will have crammed up to 8 trials in the hope that some might resolve.
For a CPS-employed prosecutor, who has a special £2k-a-pop laptop plugged into the electronic “Casework Management System (CMS)”, all the case papers should be available digitally (on those rare occasions that CMS is actually working). But for an agent, who is not permitted access to CMS, you get emailed at 6pm the night before a series of “e-briefs” – stretching to hundreds of pages – which you will print out at your own expense. These e-briefs are rarely complete, seldom comprehensible and will always be missing the latest information – such as the letter sent the day before by the defence solicitors informing the CPS that the defendant will be changing his plea to guilty, or the last minute review from the CPS lawyer decreeing that the case should be terminated.
So after the agent has been up all night trying to derive meaning from the trial files, s/he will have to spend the time between the court building opening (9:00am) and the courtroom starting (9:45am) to endeavour to check with a CPS employee what is actually happening in each case, track down the reams of missing evidence, prepare for trial (i.e. think about what you’re going to say in your speeches, what questions to ask etc), speak to the 15 witnesses who have turned up, chase the ones who haven’t, liaise with the police and fence with the 8 defence solicitors vying for your attention as they howl for vital material that the CPS has failed to serve, and that you can’t obtain without access to the Casework Management System. As you sprint from witness suite to CPS office trying desperately to piece together something of an effective trial, you have three indifferent magistrates screeching for your attendance in court, “as we can’t sit here wasting time, Mx Barrister”. If the defence approach you to make an offer – e.g. the defendant will plead guilty to some charges if you drop the others – your professional judgment, as the person with knowledge and conduct of the trial, is worthless and the decision whether to accept has to be made by a Senior or Divisional Crown Prosecutor, sitting in an office on the other side of the county. Who is rarely available on the phone to make that decision, being perennially in a Very Important Meeting with other CPS bureaucrats. Meanwhile if there is a particularly complex case – such as a youth defendant in custody seeking bail – listed in another courtroom, it will be transferred to you if the CPS prosecutor in that court doesn’t have the necessary experience, and you will be expected to deal with it there and then. You will be allowed no time to read it, and will be expected to simply stand up and divine the prosecution case. While mentally working through the preparation for the remaining trials, and working out just how you’re going to get that critical witness’ evidence completed so that she can go and pick her child up from school at 3 (which Witness Care hadn’t established until about five minutes ago was an issue). Occasionally, an entire trial will be transferred to you from another court. And again, you will be expected to get to your feet, having not seen the case before, and crack on with a criminal trial.
The DPP told the Justice Committee that she had “never seen a prosecutor in court reading out a file for the first time”. Those solicitors and barristers earning their meagre crust in the magistrates’ court will tell you – it happens every single day. And for the DPP to pretend it doesn’t, and that it’s not a scar on the conscience of the justice system that we can’t afford to treat the prosecution of criminal offences with the care and attention that victims, defendants and the public deserve, only serves to legitimise the words of Philip Davies. Which is perhaps the greatest tragedy of all.
UPDATE: I should clarify, following various comments on Twitter, that none of the above is intended to suggest that CPS-employed prosecutors have it any easier than agents. They don’t. Virtually all of the above, and more besides, applies to CPS prosecutors as well. And what makes the DPP’s blasé ripostes even more aggravating is that, with each pronouncement, she is denying, and thereby preserving, the intolerable working conditions through which her organisation is dragging its employees, day after miserable day.
With a heartfelt layman’s (and former defendant) understanding of what you have said, sir, I’d like to add I myself was ready to ask the judge to dump the ‘clown’ prosecutor in my case. She was totally unprepared and I had to inform her, that her questions were immaterial.
She came at me, e.g., with: “Sir, do you see the bruise on your wife’s wrist in the photo?” ME: “Yes, ma’am.” “Sir, that was caused by your brutalizing your wife by tying her up.” ME: “No, ma’am, it was not. IF you had read both forensic reports you’d have seen that the bruising was caused by her metal watchband when I grabbed her wrist to throw her out.” Dead silence from her, and then she came back with another half-cocked accusation rapidly fired at me. I had to again tell her she was wrong and if she’d read the case she’d know that. Even the judge by this time was saying to her, “The defendant is correct it is in your reports.” I watched her frantically scroll through her laptop looking to find something she could use.
The second prosecutor was laughable. He made up for his lack of knowledge by ‘showboating”. He entered quickly with robes flowing behind him. He snatches an item and parades it around the courtroom for all to see saying, “I want this marked as exhibit A . . . Exhibit A . . . Exhibit A. He continued with other items in the same fashion. Yet when it came time to cross examine me he also was ill prepared. But he at least knew how to raise and lower his voice to make a point, and other tricks taught. If there are Oscars for CPS performers he deserved one.
I am entirely happy to believe that the wretched Saunders has “never seen a prosecutor in court reading out a file for the first time”. What I am disinclined to believe is the inference that she has been in a courtroom during criminal proceedings. Alarm bells were ringing loud and clear regarding her limited grasp of law and procedure before she was appointed DPP, with her #porntrial Newsnight interview as Exhibit 1. (On youtube as ‘Porn Trial Defendant Simon Walsh on BBC Newsnight’) Blogger Penwing analysed what she had to say under the heading ‘In which the CPS try to justify bringing #PornTrial’.
While your experience in prosecuting a trial court is accurate, be absolutely under no illusion that any CPS trial lawyer somehow has it easier. Pre digital files, I would pick up the 36 hours worth of trials to be fitted into 7-8 hours of court time at 6pm the night before having come out of exactly the same type of Court. Unlike you, as a CPS prosecutor, if I dropped a case I would have to write a victim letter and have a meeting (rightly I should add) or I would have to sign off unused schedules not yet completed. I would call witnesses and officers on the telephone myself to secure their attendance, not being able to use the distance afforded an ‘agent’.
My experience of my colleagues still in the Mags leads me to understand that it is no different now the files are electronic. If you’re in Court the day before, you can’t prep until the evening. Your suggestion that with our £2k laptops we can work quicker than you shows a lack of understanding of CMS which is a shame if you are going to paint a picture of inequality.
My colleagues work hard in difficult circumstances and your portrayal of them is largely inaccurate although occasionally not of course. However your ultimate point is that the CPS is underfunded and undermined which has an effect on quality (including lowered daily fees meaning the calibre of agents is poorer) is totally on the money and shedding light on that is to be welcomed.
Please don’t misunderstand me – I have every sympathy for in-house CPS prosecutors. I can only speak first hand as an agent, however.
My point about the laptops wasn’t aimed at suggesting you can work quicker or have it easier – rather it was simply pointing out that agents can’t access CMS if there’s a query or problem with the e-brief.
CPS prosecutors have it even worse than agents in a number of respects, and the DPP should admit how heavy the cuts-mandated burdens are upon her staff.
The staff shortage in the CPS North West is now such that there is a serious risk to the health and well-being of committed and conscientious lawyers. The public interest in the effective administration of justice is in similar peril.
In the flowery meadow painted by Mrs Saunders, worker bees each tend to some 79 cases. If only it were so. Many exhausted and demorialised lawyers are flitting desperately from one case to another in a scorched field of between 100 and around 120. Through this desolate land runs a discoloured creek. Along the bank some distance downstream can be seen an assortment of paddles, seemingly lost forever.
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