So you’ve witnessed a crime…10 things you should know as a witness (but probably won’t be told)

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:

  1. Your witness statement is really rather important

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.

WRONG.

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.

Most good advice can be found in McFy songs

Most good advice can be found in McFly songs

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.

7. Stay

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.

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Witnesses in criminal cases deserve to know the truth

The criminal courts are horrible.

That is an inalienable truth. It is also a succinct way of summarising the findings of a report published last week by the Criminal Justice Alliance following a 20-month study of the Crown Courts. The paper – Structured Mayhem: Personal Experiences of the Crown Court – relies on observations of Crown Court proceedings and interviews with defendants, complainants, witnesses, lawyers and judges to reach the surprising conclusion that there may be areas of forestation of scatological interest to bears.

A bear crossing its legs and seeking direction from the CJA

A bear crossing its legs and seeking direction from the CJA

I’d nevertheless recommend having a read, particularly if you’re fortunate enough to have never had to appear in court. While there is little in the report to take lawyers by surprise, there’s a dark pleasure in the public vindication of the complaints that I and many others have been intoning for years. It’s not simply the fat-cat, legal aid-guzzling, bloodsucking, champagne-quaffing, three-piece-suited, self-interested liberal elite friends of the criminals – to borrow from Philip Davies MP – who are saying it.

Ordinary people – defendants, victims and witnesses of crime – know first hand that the system is an utter shambles, increasingly so due to the growing realisation of successive governments that justice, unlike health or education, is something the general public simply aren’t that excited about. Which means it is easy to find “efficiency savings” in court, CPS and legal aid budgets, year on year. In the same way that a madman with a machete gleefully hacking off your limbs one by one is making staged efficiency savings.

However, as cathartic as it is to rage against the government machine, a large part of the distress of attending court as a witness is, regrettably, unavoidable. And what jumps out from the potted anecdotes and vox pops collated in the report is the failure of those witnesses to understand how and why the criminal process operates as it does.

I don’t mean that pejoratively. The fault lies in part with the legal profession, for our chronic inability to communicate to the general public what it is we do and why it matters. Partly with popular culture propagating an Americanised myth of how the courts and justice operate. Partly with the media for grinding between the sheets with governmental phalluses quivering as they ejaculate falsehoods about the legal profession to pursue their own illiberal, anti-human rights, cost-cutting dogma.

What we need, it seems to me, is a proper, helpful, honest guide for witnesses in criminal proceedings. Not coaching, but aimed to prepare them for the grizzly reality of what they, through their public-spirited contribution to the justice system, are letting themselves in for.

Over the next day or two I’ll be having a think about what dirty little institutional secrets I, as a witness, would wish to know, with the aim of cobbling something together over the weekend. Any contributions will, as ever, be welcomed.

Sexism? Welcome to the Bar, love.

When I was a baby barrister, one particular instructing solicitor used to send me his most unappealing, horrible clients on the basis that, in his words, “You look like a child, and judges will find it harder to slam my clients with your little babyface peeking up at them”.

At the time I accepted the backhanded compliment with good grace, grateful that a solicitor had found a reason, however damaging to my fragile pupil self-esteem, to send me work. I smiled politely, went home and, having dabbed my tears, resolved to grow the biggest moustache known to man.

I now know I was wrong.

What I should have done is tell him that his behaviour was unacceptable and ageist, and, having done so, publish his comments and my satisfied, self-righteous reply across social media for his professional colleagues, clients and family to enjoy.

For that, we learn today, is how 27 year-old barrister Charlotte Proudman dealt with a hamfisted compliment directed towards her appearance by a solicitor with whom she had connected on LinkedIn. The full story is here, but the offending dialogue reads thus:

2C15990500000578-0-image-m-46_1441752987398

This exchange was posted by Ms Proudman to Twitter, where, as she no doubt intended, it swiftly became viral. In a public statement released by the solicitor earlier, he said:

“Most people post pretty unprofessional pictures on LinkedIn, my comment was aimed at the professional quality of the presentation on LinkedIn which was unfortunately misinterpreted.

‘Ms Proudman is clearly highly respected and I was pleased to receive her request to linkup and very happy to instruct her on matters which [are] relevant to her expertise, that remains the position.”

The final word goes to the claimant, who, she tells the Evening Standard, seeks a public apology and has complained not only to the CEO of the solicitor’s firm but the Solicitors Regulation Authority:

“She said: “It’s very disappointing, there are serious professional misconduct issues, as a legal professional he is required to uphold the law, and that includes the Sex Discrimination Act and the Equality Act. I felt as though it was an attack really, that’s what sexism is.”

Now. It is plain that this was a pretty silly message for the solicitor to have sent. His public statement simply compounds his embarrassment, about as convincing a cover as donning glasses and fake moustache. If he was genuinely referring to the craftsmanship of the photograph, he would clearly not have prefaced it with an admission that his comments were “horrendously politically incorrect”. Professionalism – in fact normal standards of civilised behaviour – would dictate that you refrain from passing comment on a stranger’s physical appearance.

But “serious misconduct”? An “attack”? A breach of the “Sex Discrimination Act and the Equality Act”? (N.B. The Sex Discrimination Act was in fact repealed by the Equality Act 2010, as one might hope a lawyer pleading a claim would check). Was this approach, however ill-advised, a misdemeanour that requires not only the Twitter dogs of war but professional regulatory bodies to be let slip? Does it warrant – as could now follow – the extinguishing of an entire career?

The comment may well, depending on one’s personal political standpoint, qualify as sexist. It’s a comment that he may not have made to a man, and the application of double standards is a fairly decent litmus for -isms. By the same token, one wonders if, by unnecessarily invoking the solicitor’s age in her reply, Ms Proudman is herself teetering towards a counter-allegation of ageism. Presumably a sexist comment is sexist regardless of the age of its maker, and by pejoratively incorporating age into her response, Ms Proudman provokes the question of whether her disgust was motivated in part by this man’s advanced years.

But accepting that this was, and I think it cannot sensibly be put higher than this, a sexist comment made with no ill-will, Ms Proudman had other options. She could have responded by simply ignoring this clumsy attempt at flattery. Or by just replying to him firmly, without sunning herself in the glow of self-publicity that she would have known would flow from publicly humiliating a senior partner in a large firm.

Because, mounting my equal opportunities podium, this is not just about the possible ruination of a man’s career, but about a broader, important point concerning the sexism that still pervades the legal profession, not least the Bar. While the Bar is better than it was, everyday sexism oozes out of certain tiers. The Head of Chambers’ hands on the pupil’s waist at chambers Christmas parties, indiscreetly sliding down. The robing room badinage voting on “the fittest juror” in a trial. The senior clerk who pushes a juicy brief a man’s way ahead of a female contemporary because, well sir, you know how she can get, LOLZ. The female practitioner on the pupillage recruitment panel voting against a 29 year-old applicant as a “fucking baby bomb waiting to go off”. The lack of female representation among the senior judiciary. There is no better deflection from these serious, ingrained problems than the “hysterical feminist” trope. And in acting as she has, Ms Proudman has handed a propaganda scoop to those, in law and outside, who falsely proclaim the end of sexism and chide the redundancy of feminism.

This is not pointless “whataboutery”. It is acknowledging the problem, but reflecting on how best to tackle it. Do you raise hell over the inconsequential at the risk of giving your opponent an opportunity to deflect from the genuine issue? Or do you deal with such minor slights in a considered, discreet fashion that keeps your powder dry for the battles worth fighting?

The art of good advocacy is judgement. Knowing when to take a point, and how to present it to best assist your cause. Charlotte Proudman has demonstrated, to a captive national audience of potential instructing solicitors, that this, perhaps, is not her forte.

Bozo the clown shows that the government doesn’t even understand its own grotesque Criminal Courts Charge

Do not mistake this for a witch-hunt. It is not. Rather, it is a ninny-hunt. In fact, if there was sufficient slogan space on the t-shirts that I, as a modern-day Thomas Danforth, would distribute to the villagers along with their flaming torches, it is a Legally-Illiterate-Ninny-Who-Has-Inexplicably-Found-His-Hands-On-The-Oxidated-Levers-of-Justice hunt.

Shailesh Vara MP, the under-secretary of state at the Ministry of Justice since 7th October 2013, has already reserved for himself a special place in the hearts of the Bar by marching to the media in January 2014 armed with a fistful of misleading statistics purporting to attribute average annual earnings  of £84,000 to criminal barristers (the reality being an average net income of around £27,000). Having been soundly thrashed by the UK Statistics Authority, he has not sought to pursue this line of attack, commonly falling back instead on the Ministry of Justice’s other favourite trope, the “most expensive legal aid system in Europe” fallacy.

I have previously suggested that Mr Vara is a mendacious bozo. I illustrated this considered submission as below:

Shailesh Vara on the left, the Criminal Justice System on the right

Shailesh Vara on the left, the Criminal Justice System on the right

I now recognise that this was wrong. After yesterday, I am coming round to the sad realisation that he is, in fact, merely incapable of grasping the essentials of his brief. Over promoted beyond any ability to which he might one day aspire. The milk monitor fast-tracked to deputy headteacher, dribbling through governance meetings with periodic interjections of “What about the milk?”, as the grown ups exchange raised eyebrows and nod at him with big, patronising smiles.

At Justice Questions yesterday, Mr Vara was asked, quite properly, about the ongoing impact of the appalling Criminal Courts Charge, the mandatory financial penalty that courts are now forced to impose upon defendants regardless of their means. So grotesque is this brainchild of now-ejected Justice Secretary Chris Grayling that magistrates nationwide are resigning in protest, and most Crown Court judges, in my experience, are “forgetting” to impose it, prosecuting and defence counsel complicit in a conspiracy of silence aimed at harshing Mr Grayling’s mellow.

Anyway, Mr Vara, as bozo with responsibility for such matters, engaged in the following exchange with Labour MP Kate Hollern:

T7. [901243] Kate Hollern (Blackburn) (Lab): When the criminal courts charge was introduced, Labour warned that the lack of judicial discretion would result in miscarriages of justice, with people pleading guilty to avoid additional cost. It concerns me that people may be pleading guilty to save money in the short term. That will have a longer term impact on employment opportunities. Does the Minister think that is right and fair?

Mr Vara: I very much hope that if people are innocent, they will plead innocent. It is important to remember that the charge is levied at the end of all the other charges—costs, compensation, victims’ surcharge and so on. The charge is also based on ability to pay, so if people are having difficulty, they will not be forced to pay. If they do keep to their payments, no matter how minimal they are, then after two years the rest of the sum is actually scrapped.

Putting aside the unfortunate turn of phrase “plead innocent”, betraying an understanding of criminal procedure ad idem to a belief that being a doctor involves running around a hospital ward with a stethoscope shouting “stat”, it is Mr Vara’s understanding of the operation of the Criminal Courts Charge that causes particular alarm.

Let’s, in the words of Kid Ink, break it down.

“The charge is levied at the end of all the other charges – costs, compensation, victims’ surcharge and so on.” Chronologically, Mr Vara is right. Usually, when passing sentence, the Criminal Courts Charge is the final order announced by the court. It is also right that, when it comes to collecting defendant’s court debts, other financial orders take precedence. But that is not what Mr Vara is trying to convey. He is being asked directly about the affordability of the charge, and is plainly implying that the Charge is only imposed after consideration has been given to affordability of all financial orders imposed. This is entirely false. The regulations specifically prevent the court from taking the charge into account when setting the level of sentence. It is a fixed sum, payable regardless of the level of fine, compensation or prosecution costs.

“The charge is also based on ability to pay”. As above, this is simply not true. The charge, up to £1,200, is imposed irrespective of ability to pay.  This is why 50 magistrates have resigned and judges and practitioners nationwide are despairing. It’s not because we have an inherent fondness for the lowlife we prosecute and defend. It’s because we recognise, as civilised beings, that it is abhorrent to order, under threat of imprisonment, that people pay the state disproportionate financial penalties that they plainly can’t ever meet.

“If they are having difficulty, they will not be forced to pay”. The best that can be said is that after two years the magistrates have a discretion to remit the charge, but this is contingent on the defendant having not only paid as much as possible, but also having remained “offence free” for two years. As everyone in the criminal justice system, bar Mr Vara, recognises, those hit hardest by the CCC are the penniless, shoplifting drug addicts who, even during an ultimately successful rehabilitation period, will intermittently slip and re-offend. Thus the MoJ has fashioned a splendid, and publicly-funded, revolving door in which Criminal Court Charges are imposed consecutively against petty offenders, with the prospect of the charge being remitted forever two years away.

Oh, and over that never-ending two-year period, the government has the power to charge interest. Just to make sure that that rock keeps rolling back down the hill.

I do not blame Shailesh Vara for attempting to defend the indefensible. I do it professionally on a daily basis. But if he were in court, he would have been publicly scorched by a Crown Court Judge for making submissions on a premise so removed from the facts that it is plain he has not mastered – perhaps even read – his brief.

In language that a bozo can understand – if he’s going to stand up in Parliament and talk nonsense about a despicable policy, Mr Vara could at least have the decency to try to understand it.

Official: If you are accused of a crime, the government will pay more for someone to photocopy your case than for someone to defend you

This is not a complaint about what criminal barristers get paid.

Honestly.

There are plenty of such grizzlings on other posts over these pages. But this is not one of them. No siree.

Well not really.

Admittedly pay rates are a feature of this contemplation, but only as an adjunct to a broader, more depressing principle. And it all stems from this pretty picture:

A not-so-secret document

What we have here is a Freedom of Information Act disclosure from the Crown Prosecution Service. It’s a document that I’ve had knocking about my electronic armoury for a few years now. In it, the CPS respond to various FOI requests made in 2009 regarding prosecution costs applications in the criminal courts, including the question: On what basis are applications for prosecution costs against defendants calculated?

In response, the document refers to “a published scale of guidance for use by CPS staff, called Application for Costs against Convicted Defendants: Scale of Costs”. This scale is duly appended, and reproduced above. In short, the CPS will use a rough and ready estimate of the average costs incurred based on the stage at which the proceedings conclude – for example a guilty plea at the first opportunity before the magistrates’ court attracts a costs application of £85, whereas a Crown Court trial can attract up to £4,200 (and, in high cost cases where the CPS sniff that a defendant may be wealthy, often far far more).

This little chart has therefore served me well in adjudging, when prosecuting, where to pitch any costs application (assuming it is just to make the application at all). But despite this pretty picture peeking coyly at me day after day from behind the cracked confines of my iPad, it is only today that its real significance struck me, violently, like a bristlenose catfish across the chops.

Because paragraph 5 offers, for illustrative purposes, “average hourly rates appropriate to CPS staff”, as follows:

Lawyers – £69 per hour

Paralegals – £51 per hour

Support staff – £44 per hour

Now let’s be clear – these are not the values paid to CPS staff. Far from it. But they represent, by the state’s own admission, the value that the state attaches to the respective functions carried out by these employees. A fun exercise, and by “fun” I mean “simultaneously gauche and heartbreaking”, is to compare the value the state attaches to prosecution employees with the value it attaches to those representing the defence. Equality of arms, and all that.

Defence advocates are, in the majority of cases, not paid on an hourly rate. A convoluted Graduated Fees Scheme operates in the Crown Court, which ascribes fixed values to criminal cases based on the category of offence, with adjustments made depending on, among other factors, the pages of prosecution evidence (i.e. the witness statements, documentary exhibits, photographs, Records of Interview etc). Boiled down, the Advocates Graduated Fee Scheme will pay a set fee designed to encompass all or most of the work involved in the case – namely all preparation, three conferences (meetings) with the client, five court hearings prior to trial, and a two-day trial. (It is out of this fixed fee that barristers have to pay colleagues if we are unable to attend a hearing and someone covers it for us.)

To illustrate, the basic fee for a two-day burglary trial with 8 witnesses and 40 pages of evidence in the Crown Court is £653. If, as can happen, there end up being 5 hearings prior to trial – for example Plea and Case Management Hearings repeatedly adjourned because the CPS haven’t served the evidence on time or applications for disclosure – that might be another five days on which I have to attend court for this case. Or, alternatively, pay a colleague £87 to attend for me. Add in a couple of conferences in prison, which themselves each take half a day out of my diary, and it’s feasible that my fee will represent 8 working days. And this is excluding time taken to actually prepare the trial – read the papers, consider cross-examination of witnesses, draft Defence Statements, edit the police interviews, write my closing speech etc. So a pessimistic calculation might read as follows:

8 days in court/conference at 6 hours per day plus 6 hours to prepare the trial = 54 hours = £12.09 per hour. That is the gross rate that the state deems reasonable for a barrister defending a burglary trial, which could conclude in a prison sentence of up to 14 years.

A burglar

£6 net an hour to defend this fellow

Now that, I accept, is a particularly upsetting example. And the Legal Aid Agency would no doubt retort that I am mischievously throwing a giant tarpaulin over the swings, roundabouts and other playground paraphernalia comprising the bedrock of legal aid work, and ignoring the fact that there will be cases where significantly less work is required, and which result in a comparatively healthy fee.

So perhaps the most objective judge of the value that the state attaches to defence lawyers can be found in the few instances where hourly rates are paid. The table of fixed fees can be found here, at Part 2 reg. 24. As can be seen, hourly rates are rare – but they do feature, for example, in “wasted preparation” and “special preparation”. “Wasted preparation” relates to cases where the advocate has done significant preparation on a usually-complex matter, and for reasons outside their control cannot attend the trial. These types of payments are very rare – normally such time wasted is simply an occupational hazard carrying nil compensation. But where the strict criteria are met, an hourly fee can be claimed. “Special preparation” can be claimed where it has been necessary for the advocate to undertake preparation “substantially in excess of the amount normally done for cases of the same type”. Again, the Legal Aid Agency will channel the bonhomie and fair-mindedness of an insurance company when such a claim is submitted, but, theoretically, this work is payable at an hourly rate.

 For a “junior alone” – that is a run-of-the-mill barrister (not a Queen’s Counsel) with anything from 6 months’ to 40 years’ experience, the gross hourly rate that is deemed appropriate, in each instance, is £39. Thirty nine pounds.

Now return to the above chart.

That is £30 an hour less than the state bills for CPS lawyers. £12 an hour less than the state bills for paralegals. And £5 an hour less than the state bills for administrative support.

It’s worth repeating. If you are accused by the state of a serious criminal offence, the state values your defence lawyer at £5 an hour less than the prosecution office staff. The state, if you are convicted, will charge you more per hour for the person who does their photocopying than they are willing to pay for your barrister.

Again, I am not suggesting for a moment that CPS admin staff receive anything like £44 per hour. And I accept that many criminal barristers take home per annum significantly more than administrators. But there is an important principle at play here. This is not, for once, about what we criminal barristers earn, but what value the state attaches to effective legal representation. For every time a government minister, such as the charmless Shailesh Vara MP, bleats to the Daily Mail about the burden that legal aid rates place upon the hard-working taxpayer, someone should ask him whether he considers it reasonable to value legal aid lawyers at at least the equivalent of prosecution office support staff. And if he agrees, point out that he owes defence lawyers a £5 per hour raise.

Witless for the Prosecution: A brief response to the CPS’ response

Last weekend, the Sun on Sunday gobbled up the juiciest, lowest-hanging fruit on the legal stories tree (if such an arboreal metaphor exists) and published a mini-splash on the various maladies rotting the Crown Prosecution Service.

The article, “Witless for the Prosecution”, relied upon seemingly anecdotal evidence from two anonymous CPS whistleblowers – one a “top barrister” (so not me) – and reported that “morale has hit rock bottom and staff are cracking under the stress”. Implicitly attributing the problem to the 31% cut in CPS staff since 2010 (although remaining strangely silent on The Sun’s vibrant enthusiasm for the austerity agenda that directly led to that cut), the piece listed a series of bullet points alleging various examples of overworked employees and failing prosecutions.

A legal tree

A legal stories tree

None of which, to readers of this blog, is news. But The Sun is nevertheless to be congratulated on pursuing a scandal that the broadsheets have hitherto seen fit to ignore.

Today, the CPS found time and resources to publish a response. Describing the original article as “misleading” and “ridiculous”, it took issue with various facets including suggestions that prosecutors deal with 160 cases at a time (the average per lawyer is 79, the CPS retorts), and that two lawyers can cover as many as 16 courts. By way of final fanfare, we were assured that “Our record of delivering justice for the public speaks for itself”. In other words, the take-home message ran, it’s a happy and well-oiled crew manning HMS CPS.

No doubt the Sun on Sunday has sufficient material from its sources to respond itself. But just to add a dash of balance into the mix, I would respectfully submit the following anecdotes for consideration:

  1. It is not uncommon for CPS caseworkers at the courts I attend to be expected to cover multiple courtrooms. Caseworkers are the glue that hold the CPS together – they prepare the cases in the office, take records of court hearings, assist barristers at court and gather, chase, locate and copy any material that may be requested by one of the (conservative estimate) fifteen barristers in any given court. It is an exhausting and unforgiving job covering one court’s load. To attempt this job running between five different courtrooms is simply Sisyphean. I have in the past fortnight seen caseworkers reduced to tears at the impossibility of their job.
  1. I cannot speak personally to the average number of cases per caseworker nationally. What I can say is that I receive repeat instructions from caseworkers I know to be diligent and assiduous, who, due to their workloads, are recently unable to deal with simple requests I have sent them in relation to serious cases involving firearms, robberies and near-fatal violence.
  1. A junior member of my chambers was recently at the magistrates’ court, prosecuting a “magistrates’ list”. Basically, any given magistrates’ courtroom will have a list of up to 50 short hearings (first appearances, legal applications, sentences etc), or a shorter list of trials, and the CPS will often instruct barristers as “agents” to do all the prosecution work in one courtroom. My colleague was given 9 trials to prepare for a single day. Preparing a trial properly from scratch takes at least an hour. He received the papers at 9am. Court started at 9:30.
  1. I have in the past two months prosecuted a dozen trials for the CPS. Not a single one had been prepared fully in accordance with counsel’s advice. And only 1 of those 12 resulted in the defendant being convicted of the offence originally charged.
  1. This year I have lost count of the number of prosecution witnesses who have told me that, as a result of the way they have been treated by the CPS, next time they are a victim of crime, they will not be calling the police.
  1. This month I have watched two extremely dangerous men released onto the streets due to basic failings by the CPS.

I appreciate the difficulties that Alison Saunders as Director of Public Prosecutions faces in remaining politically neutral. I do not expect to see her travelling to Jeremy Corbyn rallies publicly denouncing the financial pillaging of her department. But if she is unable to publicly speak the truth about the funding crisis in the CPS, she could at least do the public the service of not publishing Pravda-style vignettes seeking to minimise and delegitimise valid criticism.

It is indeed true that the CPS’ “record of delivering justice for the public speaks for itself”. It would just be edifying if there were a little more frankness about exactly what that record is.

Why this 75p Mars bar shows we should abolish magistrates

If there is one positive to be derived from the Criminal Courts Charge (about which see here), it is that the creeping media attention is starting to shine a low-wattage torch on the grubby underside of the criminal justice system – the magistrates’ courts.

Enormous credit must be extended to Frances Crook and colleagues at the Howard League for Penal Reform for their just and righteous campaign against the Criminal Courts Charge, Chris Grayling’s final stinking dump on the criminal justice system before Mr Cameron mercifully took him out of service and put him out to what one hopes is his final political pasture before a deserved finale at the glue factory.

By retweeting local media reportage of cases where this new mandatory financial penalty has been imposed upon the very poorest in society to cruel and perverse effect, the Howard League has piqued social media interest, and one reported case, and one injudicious judicial comment in particular, has found its way into the Twitter crosshairs.

On Thursday August 6th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.

Delicious £328.75-y goodness

Delicious £328.75-y goodness

What caught the eye, however, was this reported remark attributed to the chairman of the bench, who said: “We do not readily accept you go into a shop to steal just for being hungry.”

Read that again. And once more, please.

Now let’s get a few things clear. The Halesowen News does not report the full context of those sentencing remarks. It may be that the Defendant had resiled from that feature of her mitigation, allowing the magistrates to readily dismiss it. It may be that, in accordance with the Court of Appeal authority of R v Newton Cr.App.R. 13, having doubts as to the veracity of the defendant’s account the magistrates invited her to give evidence on oath, and, she having either done so unimpressively or having refused, the bench felt able to safely reject her explanation.

But, if they are of the same disposition and temperament as some of the magistrates in front of whom I have appeared, I cannot rule out the possibility that they instantly rejected a prima facie plausible strand of mitigation because the colour didn’t fit into the limited spectrum cast by the dispersive prism of privilege through which they view the world.

There is no doubt that there are some good magistrates. But those who volunteer with open minds and honourable intentions are, in my experience, stymied by colleagues whose collective common faults can be reeled off rote by any solicitor or barrister who has spent an afternoon holding back tears of frustration before a lay bench.

They are slow. They will take an hour to deal with a hearing that will take a professional District Judge a couple of minutes. They are entirely unrepresentative of those in respect of whom they sit in judgment, in age, social background, culture, ethnicity and class. They are predisposed to accepting prosecution – in particular police officers’ – evidence, where juries tend to analyse with a greater, deserved degree of scepticism. They will variously misunderstand, misapply or ignore basic principles of law, such as the presumption of innocence. The decree of the Queen of Hearts presiding over the trial of the stolen tarts – “Sentence first – verdict afterwards” – acts as the adopted motto of much magistrates’ court justice.

I could go on. In future posts I will. Because to those outside the system, the dictum of the Mars Bar magistrates  probably strikes as an anomaly. Whereas those inside the system know that such sentiments are expressed, distilled and formulated into sentences of up to a year in prison every single day, in every magistrates’ court in the land. 95% of criminal cases are dealt with by the magistrates’ court, by volunteers with no legal qualification and an invariably skewed perspective on social matters. And I can say without hesitation that the gravest instances of injustice I have witnessed in my career have all occurred at the hands of lay benches.

The problem, in my humble view, is not the magistrates in this case. The problem is a system that allows people to self-select as arbiters of justice, when justice would be far better served by increasing the number of professional District Judges sitting in the magistrates’ courts. None of the above would have happened with a District Judge. And I would bet £328.75 that a DJ would have dealt with Louisa Sewell with at least a smidgen of humanity.