I’ve written a piece in this week’s Big Issue on the crisis in our criminal justice system.
The article can be read online here, but if you are able to grab a paper copy and donate to a brilliant cause, I’d urge you to do so.
I’ve written a piece in this week’s Big Issue on the crisis in our criminal justice system.
The article can be read online here, but if you are able to grab a paper copy and donate to a brilliant cause, I’d urge you to do so.
The criminal law has long had an image problem.
Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.
But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.
The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.
While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.
And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.
A run of sentencing “outrages” has followed.
The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?
Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.
Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.
The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.
There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.
But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.
Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.
This article first appeared on Legal Cheek, and is available here.
On 29 December 2015, to relatively little fanfare, a well-meaning but ultimately flawed criminal law was brought into force. Today, some 8 months on, the Guardian reports that the number of people being prosecuted under this law is low, inviting remedy under David Allen Green’s so-prescient-that-it-surpasses-satire Something Must Be Done Act 2014.
The issue at hand is coercive but (generally) non-violent conduct in private relationships. Section 76 of the Serious Crime Act 2015 created a criminal offence of engaging in controlling or coercive behaviour in an intimate or family relationship, an offence which, it emerges, the police and prosecutorial agencies are not wielding with the vigour that campaigners had anticipated. Only 62 people have been charged under the legislation, as opposed to 20,000 for offences involving domestic violence over the same period.
The reason for this, I politely suggest, is twofold. First, this is a largely pointless law, re-criminalising already-criminalised conduct. And second, where it does provide for something new, it trespasses on territory over which the police cannot reasonably be expected to ride.
The intention behind this law, I add as a rider, is noble. The genesis of many violent domestic relationships can be located in non-violent but controlling and coercive behaviours exhibited early on. If we can address the latter, we can hopefully reduce the former. So far, so unobjectionable. It’s the next step of the argument that trips up the logician – namely that the best way to address controlling or coercive relationships is to pass a shiny new law threatening a 5-year prison term for those whose relationships do not cut the mustard. Like a pissed-up Premier League chairman on transfer deadline day throwing good money after bad, Parliament convinces itself that unwanted, ingrained human behaviour can be eradicated if we just chuck another law at it and send the bobbies in. Or, in the official argot of the Guidance to the Act:
“This offence sends a clear message.”
As any lawyer will tell you, and as I’ve said before in relation to the utterly useless stalking legislation, creating criminal offences to “send a message” is the golden ticket to ensuring the enactment of thoroughly bad law.
So what is the law? An offence under section 76 is committed by a person (A) where:
(a) A is or was previously in an intimate or familial relationship with another (B);
(b) A engages in repeated or continuous behaviour towards B that is controlling or coercive;
(c) That behaviour has a “serious effect” on B, in that it causes either (i) B to fear, on at least two occasions, the use of violence; OR (ii) serious alarm or distress which has a substantial adverse effect on B’s day to day activities; and
(d) A knows or ought to know that their behaviour will have that effect.
The offence carries the same maximum sentence (5 years’ imprisonment) as inflicting grievous bodily harm, in presumed observance of the (unreferenced) assertion in the Statutory Guidance that “a repeated pattern of abuse can be more injurious and harmful than a single incident of violence”.
The legislation is silent as to what constitutes “controlling and coercive behaviour”, but the Statutory Guidance Framework offers examples of “types of behaviour associated with coercion or control”.
And these are, well…problematic.
Some of these example “behaviours” are, as the Guidance acknowledges, already crimes. And crimes carrying a rather pricklier stick than section 76:
As for the rest of the list, it stands as a glistening example of the problems inherent in attempting to regulate the intangible, indefinable dynamics of other people’s relationships. Highlights include:
These are all, in certain contexts, indicators of toxic, damaging and unhealthy relationships that will spiral into violence. They are also, in certain contexts, the hallmarks of toxic, damaging and unhealthy relationships that won’t. Relationships that will sail their ghastly, destructive, hateful course through to natural completion without accelerating towards physical altercation. Relationships which, in a liberal society, people must be free to pursue and to endure, as long as that is their choice. Neither section 76, nor the police officer charged with enforcing it, has any way of predicting which route a shit relationship is going to trail. Whether it is going to turn violent – in which case, the criminal law should intervene to obviate objective harm – or whether it will remain simply miserable. If the latter, lovely as it would be if relationships were universally sprinkled with mutual respect, courtesy and affection, it is no role of the state to criminalise all deviations from the Richard Curtis romantic ideal, on the statistically vague hypothesis that some of these will turn violent. And to suggest that the police should be more proactive in identifying “coercive and controlling relationships,” and lining them up for prosecution, is broadening the ever-expanding role of overstretched and under-resourced police officers beyond law enforcement and into the arena of relationship analysis.
If this sounds like a counsel of despair, that is not the intention. Rather it is an attempt to recognise the limited scope of the criminal law in modulating complex, intimate human relationships. If the government believes that it could “save” more women from potentially violent relationships by intervening to “fix” them when they are merely “controlling and coercive”, then that is surely the preserve of social workers, not police officers or prosecutors, and not least in a climate where police and prosecutorial resources are so depleted that cases of serious domestic violence are collapsing on a daily basis. If you try to legislate against every inappropriate personal interaction, you end up with a fuzzy mess like section 76, criminalising everything and nothing.
That, more than anything, might explain why only 62 prosecutions have been pursued. Key to good law is certainty and consistency. ‘Don’t use violence’ is a legal imperative that everyone understands. ‘Make sure you don’t excessively monitor your spouse’s time, and ensure that you don’t give them only a punitive financial allowance’ is the kind of sentiment which no doubt makes sense to well-meaning campaigners, but offers little clarity to the average Josiah or Josephine. Or to the poor sod of a police officer expected to enforce it.
UPDATE: A number of people have pointed out a rather glaring topical omission from this discussion, given that this is the week of Helen’s attempted murder trial in The Archers. Helen, of course, was the longstanding victim of controlling and coercive behaviour at the hands of her husband, Rob, culminating in her stabbing him with a kitchen knife. She also provides an instructive example of the inadequacy of laws such as section 76. The difficulty in Helen’s case, and indeed the difficulty with many cases of domestic abuse, is that Helen for a long time did not consider herself to be a victim. Had concerned friends and family contacted the police, attending officers might have observed an isolated, dominated and deeply unhappy woman, bereft of self-worth living with a controlling, manipulative man, but without Helen’s recognition of her circumstances, and her willingness to support a prosecution, there would have been no chance at all of successfully prosecuting Rob under section 76. And here lies a further problem: Any criminal lawyer will tell you that the greatest obstacle in prosecuting allegations of domestic violence is securing the lasting cooperation of the complainant, for obvious and often understandable reasons. The power dynamics in abusive relationships are such that, even if the police manage to obtain a witness statement from a complainant at the time of an alleged assault, she will often have withdrawn support for the prosecution before trial. While allegations of assault can occasionally be successfully tried without the support of a complainant – through evidence of third parties or medical evidence of injury – cases such as will be brought under section 76 will inevitably require the complainant to give evidence not just of the facts of the coercive behaviour but of the personal impact upon her. In short, a successful prosecution under section 76 will usually require two things – (i) sufficient self-esteem and awareness of one’s circumstances, and (ii) unwavering support for a criminal prosecution – that for all too many victims of domestic abuse, for entirely understandable reasons, are absent. This too may explain why few successful prosecutions emerge under this legislation.
Friday 27 May 2016. The day on which the following events were deemed worthy of historical record on the front pages of the English press:
It is also the day, you may be interested to know, that the criminal justice system was officially declared “close to breaking point”. Not by me or my kindred professional complainers, but by Parliament. The House of Commons Public Accounts Committee today published a report, “Efficiency in the Criminal Justice System”, in which the very first line is:
“The criminal justice system is close to breaking point.”
Easy pickings, one might think, for magpie subs struggling to summon a splash on a topic of public interest beyond facile comments by a fame-chasing wannabe TV bimbo, or something that happened on Britain’s Got Talent. [If that sentence had been pasted closer to the first two front pages above, that joke might have worked. As it is, we’ll move on and pretend nothing happened. But just so you know, that could have been something really special.]
But no-one took the bait. Notwithstanding that the facts of the report would have been available, and known, prior to last night’s print deadlines, the tumbling of justice was apparently considered not of general interest. Let alone worthy of usurping Johnny Depp’s divorce.
In truth, much of what’s in the PAC report is drawn from other non-reported reports, and there is nothing new to surprise those stuck festering in the system. The procession of complaints can be recited rote by anyone involved with criminal justice, like a contestant trapped in a Groundhog Day version of the Generation Game conveyor belt:
Those familiar friends all feature for express criticism in the report, to which I might add, for completeness, the mischief caused by interpreters not turning up, prisoners not being brought to court, legal aid being removed from middle-class defendants, the disastrous privatisation of the Probation Service and the omnipresent shadow of CPS disclosure failings. And of course many, many other prizes, none of which present as novelty to lawyers, defendants, victims or witnesses.
But to those fortunate enough to currently find themselves outside the criminal process, who may one day, through the vagaries of fate or circumstance find themselves dragged screaming into the system, either as the victim of a crime or accused of one, this surely has to be big news? It cannot be a story that peaks at item 3 on the Today programme 7am bulletin, before being folded and put away in a drawer until the next revolution of this relentless cycle of despair.
It deserves more. It deserves anger. Passion. Rage. Frustration. Umbrage. Indignation. Shock, awe, outrage, hysteria – everything that social media is accused of being, and often is, our entire society should be right now. Because a functioning justice system is vital to a functioning society. It is as crucial as health. Education. Economic policy. Because without proper justice, the social contract by which we all live crumbles. I cringe as I write this because of its sixth-form general studies simplicity, but plainly somewhere in our society there is a blockage. And people have stopped caring, beguiled by an implicit cocksure certainty that the courts – and crime in particular – is something that only affects Other People.
Early on in my career, due to CPS failings, a defendant got bail. He went on to kill. I have seen – we have all seen – provably guilty people walk free, and not-guilty people locked up. There’s no use in squealing for extra bobbies on the beat if nearly 40% of the wrong-uns they catch don’t have their cases reviewed by the CPS, and as a consequence don’t get justice. There’s no point in reporting an assault where you’re going to be cross-examined on the minutiae of that day two years after the event, with the inevitable gaps and inconsistencies in your truthful account providing the key to your tormentor’s acquittal. And if you are accused of something you didn’t do, for which you could lose your job, your home and your liberty, it’s too late at that point bemoaning the delay in your case being heard, the failure of the CPS to disclose crucial material that would secure your acquittal, or the injustice of a third, fourth or fifth adjournment of your trial because the MoJ refuses to keep open enough courtrooms.
Criminal justice matters. If the House of Commons had published a report that opened with the conclusion, “The NHS is close to breaking point”, that would be headline news. Editorials would be screaming for ministerial accountability. If the report concluded that the Department for Health had “overstretched” hospitals and “exhausted the scope to make further cuts” – and yet the DoH insisted that a further 15% would be cut from the budget by 2019/20, no-one would believe it. The injustice – the human casualties of this macabre, sadistic approach to administering a fundamental pillar of developed nationhood – would be the headlines. Their stories, their misery, their pain.
Not Alesha f**king Dixon.
“Right.” The legal advisor looked at me, then back at the defendant. “And are any of them going to be witnesses for you today?”
“Any of who?” replied the defendant.
The legal advisor looked at me again and cleared his throat. “Any of the aliens?”
The defendant shook his head angrily. “No! My case isn’t that aliens did make me do it – it’s that at the time I believed they were making me do it. I was insane, yeah? Insane!” He brandished his antique copy of Archbold triumphantly, as I, a newbie to this prosecuting lark, took my seat and settled in for what proved to be a particularly long trial.
Notwithstanding the years that have passed since that remorseless day, defendants in person, and the attendant idiosyncrasies they bring to criminal proceedings, are far from a bygone relic.
Transform Justice, a charity campaigning for a fairer justice system, last month published a report, self-explanatorily titled, “Justice denied? The experience of unrepresented defendants in the criminal courts”. Drawing on statistical and anecdotal evidence from professionals and court users, the report concludes that magistrates’ courts are encountering DiPs in ever greater quantities.
As a prosecutor, it must be said that certain defendants in person do not inspire sympathy. Aliens Man, a frequent flier in this particular court, certainly gave a damn fine impression of someone determined to get himself convicted, with his refusal to swear an oath or affirmation and tactical decision to meet every question – regardless of context – with an increasingly angry, “I was insane, yeah?” It was impressive how creatively (and doggedly) those four words were deployed to expand the trial into the late evening.
But sympathetic or not, everyone – even a man furiously declining to give evidence in his own defence “until that prosecutor goes into the witness box first” – is entitled to justice. And what we see all too often, as reflected in the report, is that injustice – perceived and real – waddles hand-in-hand with a lack of access to legal representation. Occasionally it will be a conscious choice to eschew professional assistance, as with every criminal advocate’s favourite Magna Carta-quoting oddballs, Freemen on the Land, who with a defiant ignorance of constitutional law and a fistful of printed internet “legal” advice, try valiantly to persuade the court that is has no jurisdiction to try them without their consent, coz Magna Carta. But the recent proliferation of DiPs is largely attributable directly to conscious executive fiat.
A low means-testing threshold (a disposable household income of £22,325 in the magistrates’ court,) and punitive legal aid contributions for those who do qualify force many middle-income defendants into self-representing. Thrashing through the administrative process if you’re self-employed is a nightmare, the impenetrable ambiguity of the Legal Aid forms seemingly designed to ensure rejection at the first attempt. The Legal Aid Agency is the institutional embodiment of jobsworthiness, kicking out valid applications for the most trivial – and occasionally non-existent – of perceived slights.
Putting aside the truism, attested by any Judge, solicitor or barrister, that any costs saved in depriving litigants in person of public funding are spunked ten times over by the added court time and resources needed to deal with their cases, the danger, particularly in the magistrates’ court, is of significant miscarriages of justice.
I’ve had years of dubious pleasure watching magistrates deal with defendants in person. Many benches do their best to assist the bewildered through the process. But many don’t. I recall vividly watching agog as the bench – abetted by their legal advisor – invited a defendant in person to plead guilty to having an offensive weapon – a hammer – on the basis that he said in interview that he had it with him but intended only to frighten with it. A hammer not being offensive per se, the offence could only be committed if he’d intended to use it to cause injury. Fortunately another solicitor, exchanging raised eyebrows with me, interjected to inject some law into proceedings.
And the fear has to be, as courts are smoothly re-engineered as whirring production lines of justice through Better Case Management, putting the emphasis on speed ahead of quality, that defendants in person will get dragged between the grinding mechanism beneath, their cries unheard and their cases undiscovered.
There’s little more to cheer in the Crown Court. While the figure for defendants in person is currently steady, this won’t last. The indefensible removal in 2014 of legal aid from defendants with disposable household incomes of £37,500 will collide, I grimly predict, with the exponential increase in prosecutions of historical sexual allegations – in which many defendants will find themselves bitten by the threshold – with what can only be forecasted as appalling consequences for justice.
The brave new digital world pioneered by the Ministry of Justice is currently predicated on the assumption that all will be represented, the MoJ Jekyll seemingly blissfully ignorant of the MoJ Hyde’s bloody night-time trampling over legal aid. Quite how a defendant-in-person is expected to muster the wherewithal to extricate disclosable Social Services records from an exhausted Crown Prosecution Service, or manage the inevitable 500-page-strong Notice of Additional Evidence casually tossed onto the defence on the first day of trial, Lord alone knows.
Many of these problems could be ameliorated by the simple automatic grant of legal aid to anyone accused by the state of a criminal offence, with provision to recoup that money, where available, in the case of convictions. Utterly unobjectionable in principle. Sadly the modus of successive Justice Secretaries has been subservience to the false economy of plundering legal aid, plunging other departmental budgets into the red in satisfaction of a laughably dishonest public commitment to “fiscal responsibility” and “tough spending decisions”.
Now that really is insane.
“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.
This is a little later than promised. But, following on from the Criminal Justice Alliance report last month, chronicling the collected misery of witnesses in Crown Court trials, herewith a litany of dirty little secrets masquerading as home truths, which I as a witness would want to know in advance. Just to make the heartbreak if not easier to bear, at least less unexpected:
So you’ve given your witness statement? That’s just a document where the police jot down roughly what happened, right? As long as it’s close to the mark, it doesn’t have to contain EVERYTHING. If a couple of details are taken down wrong by the police then it’s not crazy important. You’ve spent two hours giving your account of a harrowing, fast-moving event, it’s late on a school night and you’re content to sign what’s being waved in front of you so that Pc Nosehair will get out of your kitchen and you can just sink your teeth into a Ginster’s and crash out. Any errors or snafus can be straightened out later, yeah? No harm done.
If I am defending at trial, I am going to use that witness statement against you. I am going to exploit every teensy inconsistency between the minutiae of that document and the evidence you give the court from memory 18 months later. I intend to roll it up like a newspaper and biff you metaphorically on the nose with it like the naughty unreliable puppy that I want the jury to see that you are.
Make sure your witness statement is as full and accurate as it can be. Compel the officer to redraft, amend and buff your statement until you are not just satisfied but positively giddy at its craftsmanship.
2. It’s not all about you
Our friends in McFly might say otherwise, but I’m afraid it’s not all about you. You might be the complainant, the case might hinge entirely on your evidence, but you are not a party to proceedings. As such, you have no real say. The state prosecutes. The defendant defends. You are a witness, nothing more. You are not represented. The prosecution barrister is not your barrister. And while we have such lovely-sounding concepts as a Victims Code and a Victims Commissioner and a Victim’s Netflix n Chill (possibly), the CPS have the discretion to drive your case to a disused industrial estate and surreptitiously discharge two bullets into the back of its head if the evidence starts to unravel, or, as is happening increasingly frequently, it all starts to look a bit pricey. A burglary that requires an expensive expert DNA report? Well hello there, Notice of Discontinuance. You do have a right to request a review of a CPS decision when they bin a case – and I would urge you to exercise it if you’re dissatisfied – but just be prepared for the case to collapse at any time up to and including the trial.
3. It’s all about you
Actually, our friends in McFly have it spot on. It is all about you, when it comes to doing the prosecution’s job for them. Sadly, while the Witness Care Unit should keep in regular contact to update you on the progression of the case, remind you of court dates and so forth, “should” is employed in an aspirational rather than imperative sense, because invariably there are breakdowns in communication, or, to be less euphemistic, mega explosions of bottom-shattering incompetence. The trial might be moved. Your evidence might be agreed, meaning you don’t need to attend court. The scuzzbag might plead guilty. And it’s quite possible you won’t be told. So proactively case manage. Chase regularly for updates. If something new occurs to you, ask to give a further witness statement. And for Lordy’s sake let the Witness Care Unit know if there’s a problem with your attendance.
4. Help a sister out
There is a very real chance that the prosecution barrister will have been dumped with this trial the night before. If so, it is guaranteed that they will not have all the papers in the case. Even more dangerously, they may not realise that they don’t have all the papers. The typical prosecution brief arrives from the CPS containing triplicates of empty pro-forma documents and zilch copies of the actual evidence. When the barrister comes to see you in the witness suite on the morning of the trial (and they should – if they haven’t, demand to see them) ask them whether they’ve got all of your statements. If you’ve subsequently told the police something that might be helpful, ask the barrister whether they’re aware of it. The barrister is not allowed to discuss the evidence with you (to avoid suggestions that you’ve tailored your evidence to fit the case), but they will want to know whether an avenue of enquiry remains unchartered. It’s probably too late for them to do much about it if the police/CPS have just sat on the information for months, but the poor sod can at least pull the bag from the river, tip out the stones and attempt to reinflate those tiny kitten lungs.
5. Wait there
Prepare to wait. And wait. And wait. And wait. And go away, and come back, and wait again. Ad infinitum. Participants – both defendants and witnesses – are often dysfunctional and chaotic, as well as reliant on an equally dysfunctional and chaotic public transport system. The myriad heads of the court Hydra are in the gift of provably useless private companies who will faithfully forget to bring prisoners to court or fail to send an interpreter. Trials are inevitably underprepared by an overstretched Crown Prosecution Service, meaning delays as crucial evidence or disclosure is obtained and served on the day of trial. Add to this the fact that courts list up to 9 “floating trials” (trials without an allocated courtroom) in a single day – while courtrooms sit locked and unused on account of “efficiency savings” – meaning your trial probably won’t get called on. And look forward to the probability that, even if you do have a courtroom and a full set of defendants and witnesses, there may not be enough jurors. That’s the genius of the court system.
6. Giving evidence is not going to be pleasant
Giving evidence is going to be horrible. If you’ve been required to attend court, it will usually be because material parts of your witness statement are disputed by the defence, and you will be challenged. Forcefully. At best, it will be suggested that you are mistaken. Quite probably, you will be accused of outright lying. It is not nice, but this is the adversarial system. The quickest and most painless way through is to listen and just answer the questions. Don’t try to be clever and twist the knife into the defendant, because odds are his barrister is just waiting to tick off “vengeful” on her checklist of closing speech pejoratives. Don’t pick a fight with the defence advocate, because that’s often what we want. Don’t change your evidence based on what you think or know someone else has told the court before you. And don’t lie. Not just because serving a prison sentence for perjury is an irritant you can do without, but because you don’t know what evidence the defence have up their sleeve to demolish that lie and leave your credibility – and the case – in tatters.
It will be the last thing you feel like doing, but, if you can bear to, nip back into court after you’ve finished giving evidence, take a pew in the public gallery and watch the rest of the trial. As long as there’s been no indication that you might be recalled, you’re a fully-accredited member of the public and are entitled to sit and watch the fun unfold. And I would recommend it, because it not only allows you to see your evidence in the context of the trial as a whole, but to identify who or what is to blame if it all goes a bit Donald Trump. While the first sign of insanity is trying to second-guess the inner-workings of the jury room, there tends to be a fairly obvious reason behind most acquittals, and it’s rarely perceptible without hearing all of the evidence. So, for your own peace of mind, stay behind, absorb the rest of the evidence, the legal argument, the speeches and the summing up, and if the worst happens, you might at least understand – even if you violently disagree with – the jury’s verdict.
8. Don’t be afraid to ask questions
If you don’t stay to watch – actually, even if you do – ask for explanations if anything is unclear. While (2) above is the bottom line, the CPS should consult with you over and/or explain any significant developments in the way the case is dealt with – for example where the prosecution accept guilty pleas to some offences in return for not proceeding on others, or where the defendant pleads guilty on a certain factual basis. If a prosecutorial decision appears arbitrary or irrational, ask the barrister at court (or a CPS lawyer in writing) for an explanation. There should be one. Sometimes the dirty little secret that the prosecution will be desperate to keep hidden from you is that their hand was forced by a failure by either the CPS or the police to obtain/serve/disclose vital material. If this is the case, you deserve to know.
9. Keep the faith
In spite of the above, I implore you to stick with it. The system relies enormously on the goodwill of members of the public who are treated abysmally, but without that goodwill, one of two things happens. Either cases collapse, meaning potentially guilty people walking free, or steps are taken to compel your attendance at court. If a witness summons is issued and you fail to attend, the court can issue a warrant for your arrest and hold you in contempt of court, which could result in a prison sentence of up to 2 years. I have lost count of the number of cases where a case against a defendant has collapsed and the only person being punished is the witness for not attending. I think in particular of a vindictive judge in the north who finds sport in locking up battered women who fail to attend to give evidence against their partners.
10. Claim your expenses
You should not be out of pocket for doing your public duty. Claim for your travel, your parking, your meals, your loss of earnings, and stuff your pockets with free Digestives from the witness suite. It’s the least you’re entitled to, in my humble view.