The criminal law has no business interfering in bad relationships

On 29 December 2015, to relatively little fanfare, a well-meaning but ultimately silly criminal law was brought into force. Today, some 8 months on, the Guardian reports that the number of people being prosecuted under this silly law is low, inviting remedy under David Allen Green’s so-prescient-that-it-surpasses-satire Something Must Be Done Act 2014.

The silly law itself could in fact have been enacted pursuant to the SMBDA’s untrammelled prohibitionist jurisdiction, satisfying the Act’s requirement that things that can be banned shall be “the things which a Minister of the Crown says are bad for us”. And what is bad for us, in this instance, is unpleasant, non-violent conduct in private relationships. Hence the birth at the eve of last year of section 76 of the Serious Crime Act 2015, creating 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.

Elizabeth-and-Richard-elizabeth-taylor-and-richard-burton-31539745-346-359

The Law Against Bad Relationships

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.

The 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:

  • Threats to kill (Max sentence 10 years)
  • Child neglect (Max sentence 10 years)
  • Assault (Depending on injury, max sentence of 6 months, 5 years or life imprisonment)
  • Criminal Damage (Depending on quantum of damage, max sentence 6 months or 10 years)
  • Rape (Max sentence life imprisonment)

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:

  • Repeatedly putting [a person] down such as telling them they are worthless;
  • Threats to reveal private information;
  • Financial abuse, including control of finances, such as only allowing a person a punitive allowance;
  • Monitoring a person via online communication tools;
  • Monitoring their time;
  • Preventing a person from having access to transport or from working.

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.

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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.

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It’s official: the Criminal Justice System is broken, and no-one seems to care

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:

dailystar independentexpress ft guardian mail metro mirror telegraph thesun times

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:

  • Unacceptable delays – months, years – in cases getting to trial;
  • A consequent enormous backlog of serious criminal cases;
  • Gross inefficiencies in preparing and reviewing prosecutions;
  • An overall system that is both underfunded and overstretched;
  • A lack of accountability;
  • “Cost savings” which simply shunt costs from one part of the system to another;
  • Callous treatment of witnesses and victims;
  • Insufficient judges, CPS staff and court sitting days to manage the caseload;
  • No credible plan by the Ministry of Justice to use its court buildings efficiently – e.g. £100,000 was recently spent on installing new windows at Torquay magistrates’ court even though the MoJ intended to close the building down;
  • No thought given to how defendants, jurors and witnesses might physically get to court once the MoJ has closed down all the smaller rural courts, and they have to travel 100 miles without access to regular public transport.

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 fucking Dixon.

It’s not the police’s job to “believe victims”

I make plain at the outset that I will forever, until the untimely end of my days and beyond, harbour a residual affection for anyone, of any political persuasion, who tells Diane Abbott to fuck off. At any time of day, in any given context, this is surely always the right thing to do.

But today, Jess Phillips MP has made a boo boo from which I sincerely hope she will distance herself.

She was apparently responding to various media outings by Metropolitan Commissioner Sir Bernard Hogan-Howe, who, dodging the shrapnel from the implosion of Operation Midland, has formally announced a volte-face in the way police officers will approach allegations of sexual abuse. No longer, it seems, will we have beaming police officers hosting press conferences where they tell the world’s media that a complainant is “credible and true”. No more will they appeal for prospective complainants to come forward with the cry: You Will Be Believed. No, it appears that the police might give a vague nod towards such old nostalgia hits as the presumption of innocence, and the importance of comprehensive investigations.

Writing in the Guardian, St Bernard said:

We must be clear about the principle of impartiality at the heart of criminal justice. Dame Elish Angiolini, who has reviewed our approach to rape investigations, made a proposal that should be at the core of this debate. She detailed how our policy has moved over the years. In 2002, the Met said officers should “accept allegations made by the victim in the first instance as being truthful”. A report in 2005 called for a “culture of belief, support and respect”. In 2014, Her Majesty’s Inspector of Constabulary said: “The presumption that a victim should always be believed should be institutionalised.” A complaint of sexual abuse must now be recorded immediately as a crime.

Dame Elish questioned whether it is appropriate, or possible, to instruct an officer to believe. Instead, she said: “It is more appropriate for criminal justice practitioners to remain utterly professional at all times and to demonstrate respect, impartiality, empathy and to maintain an open mind … in the first instance, officers should proceed on the basis that the allegation is truthful.”

Now I confess ignorance of the aforementioned 2014 report – I had no idea that the state had formally codified this inversion of the presumption of innocence, although few defence practitioners will be surprised. Nevertheless, this is genuinely shocking. A presumption that a complainant is telling the truth is a presumption that the accused is lying. It is a fundamental reversal of the foundation of British justice.

Nevertheless, in response to Hogan-Howe’s article, Ms Phillips, seemingly determined to prove the maxim of Mr Justice Coulsen, tweeted:

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Right. A brief primer, if we may: The police’s job is not to believe.

The police are not fucking Journey.

Stop Believin'. Seriously.

Stop Believin’. Seriously.

The police are charged as the investigative arm of the state where criminal offences are alleged to have occurred. Their various functions, duties and responsibilities are codified in bodies of statute, statutory instrument, codes of practice and case law. Those functions are many and varied, but include, critically for this purpose, as per the Code of Practice pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996, the duty to establish whether a crime has even been committed. If the investigation leads them to conclude that a crime has or may have been committed, the police have the duty to investigate all lines of enquiry, including those that point away from the suspect’s guilt.

It doesn’t end there. Once a suspect is charged, the police and the Crown Prosecution Service remain under a continuing duty of disclosure – which means they are required by law to provide to a defendant any material gathered during the course of the investigation which might assist the defence or undermine the prosecution. This vital function in ensuring that justice is done – that the innocent are acquitted and the guilty convicted – is not just compromised but wantonly pissed all over if the police adopt the starting point that they must accept unquestioningly everything a complainant says.

And this attitude is all the more grievous for the fact that it has been reserved, it seems, for the very cases in which the credibility of the complainant is most likely to be the issue at trial for the jury to decide. How on earth can the accused be sure that he has been provided with all the relevant information with which to defend himself – such as (as the courts often encounter in sex cases) previous false allegations by a complainant, or witnesses who may contradict the prosecution case – when the police are encouraged to build up a case to enshrine the complainant’s version of events?

It hurts that I have to make what feel like incredibly simple, facile points, but plainly I do: The starting point for all investigations – sexual and otherwise – has to be neutrality. If a complaint is made, the police must investigate it, and investigate it thoroughly. They should treat complainants with courtesy and respect, but with the same open mind and critical analysis as they should a suspect. This is not “victim blaming” or “calling all victims liars” or any other formulation to which Ms Phillips might wish to pin her badge. It is the police discharging their vital public duties properly and in accordance with the administration of justice.

If they don’t, innocent people end up in prison. Institutionalising “belief” leads to catastrophic miscarriages of justice. The kind where people spend decades, if not lifetimes, festering in a cell for something they did not do.

Netflix’s Making A Murderer stands as a pop culture exemplar of police officers forming a settled view of someone’s guilt, and moulding an investigation in the image of that One True Faith.

If she hasn’t seen it, I’ll happily pay for Jess Phillips’ subscription.

 

Prosecutions are a shambles – how can the DPP suggest otherwise?

“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.

I like The Kinks. They really get me.

I like The Kinks. They really get me.

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.”

And

“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 ten types of excrement out of the festering penniless corpse 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.

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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.

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 up to five 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 (in a female-only carriage, natch) publicly denouncing the financial rape 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 of the remorseless chaos that is the prosecutorial system.

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 honesty about exactly what that record is.

Why on earth should the DPP resign over Lord Janner?

I don’t normally blog on serious matters of law. Doing so tends to involve a level of effort, research and legal analysis way beyond my limited capacity, and in any case there are a number of top notch blogs (as listed in the blogroll) with which I can’t, and wouldn’t, compete. But as the allegations against Lord Greville Janner resurface today, with media speculation forecasting that the decision by the Director of Public Prosecutions not to prosecute Lord Janner is likely to be overturned by an independent review, my social media timelines become clogged with the breed of moronity that cries out for a written retributive and restorative thrashing, Basil Fawlty-style.

basil

The most depressingly brainless suggestion, one which is being tossed around on Twitter, in the mainstream media and by MPs, is that if the independent review concludes in favour of a prosecution, DPP Alison Saunders should resign.

Now I hold no torch for the DPP. I am by nature suspicious of any criminal lawyer who restricts themselves solely to prosecuting or solely to defending. Crown Prosecution Service lawyers, particularly those who successfully scramble to the upper branches of the Civil Service tree, tend in my experience to have somewhat calcified pro-prosecution attitudes, and that is before one turns to the systemic obsession with targets and statistics before which successful CPS employees are required to prostrate themselves to secure promotion. Alison Saunders, as a lawyer whose entire professional post-qualification career has reportedly been spent with the Crown Prosecution Service, would therefore not on paper have been my cup of chai for the position of DPP. I also find thoroughly distasteful that she has not sought to draw back from the culture of self-congratulatory press conferences that it has become customary for the CPS to hold when announcing a charging decision against someone famous (press conferences which are not held, surprisingly, when someone famous is later acquitted). Her populist pursuit of journalists betrayed an institutional lack of understanding of the offence of committing misconduct in public office. Her comments on consent and rape indicated a troubling confusion over the burden of proof in such cases.

But to resign because an independent review of the evidence reaches a different conclusion to hers as to the public interest in proceeding against a person whom four medical experts concluded could not have any meaningful engagement with the court process”?

That would be insanity. In a non-legal sense.

Unless Alison Saunders misled the public in her statement, or misread the medical reports, or is found to have a car boot full of “I heart Janner” badges, all that a decision to prosecute means is that another lawyer looking at the same facts came to a different conclusion as to what better served the public interest.

The test for launching any prosecution is twofold – firstly, is there a realistic prospect of conviction based on the evidence (the “evidential test”)?; secondly, is a prosecution in the public interest (the “public interest test”)? In Lord Janner’s case, the DPP said that the evidential test was satisfied – that is there was a realistic prospect of conviction based on the evidence gathered. She has not dismissed the complaints as not credible. The only contentious judgment call is whether, based on all the circumstances, including the medical material, it was in the public interest to prosecute. The Code for Crown Prosecutors offers assistance with the interpretation of “the public interest”, but it is mostly fairly obvious.

The arguments for the two camps can be set out as follows:

1) It is plainly not in the public interest to prosecute. Four medical experts, including two instructed by the prosecution, found Lord Janner incapable of engaging with the court process. He would inevitably be found unfit to plead by a Judge, pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964. This would mean no criminal trial and no conviction – all that would follow is a “determination on the evidence” in which uncontested, unchallenged prosecution evidence is put before a jury to show that the defendant “did the act…charged against him”. The ultimate outcome where the act is proved can only be one of the following:

  1. a) a supervision order;
  2. b) a hospital order;
  3. c) an absolute discharge (i.e. no action is taken at all);

Due to the age of the alleged offending and Janner’s current medical diagnosis, neither (a) nor (b) will be ordered, and so the complainants will be put through the ordeal of giving evidence, and the public will be put to enormous expense, for an outcome where there is no conviction and no action taken at the conclusion. The public interest is against this.

And:

2) It is plainly in the public interest to prosecute. The medical evidence can be tested in court by the Judge. He or she may find that, in fact, Lord Janner is fit to plead, and that a trial can take place. If the court finds that Janner is unfit to plead, there can be a determination on the evidence where the complainants can be heard. Even if the ultimate disposal of the case is an absolute discharge, there will have been a finding of fact which provides the complainants with some vindication, and due process will have taken place. The allegations are extremely serious and the public interest is in favour of bringing such allegations before the courts.

Surely any rational person can see the force in either of those two positions. You may favour one over the other, but to suggest that to arrive at (1) is so unreasonable, so out of kilter with the concept of the public interest that any person adopting that position should lose their job, is not only unsustainable, but dangerous.

The DPP is a politically independent position, notwithstanding the unedifying spectacle of grandstanding MPs scoring political capital out of her decisions. That we have a working system of review for prosecution decisions is to be celebrated, not used as a truncheon to bludgeon the career of any lawyer who makes an evaluation that arouses controversy.

All that a resignation from Alison Saunders means is that any future DPP – and any current CPS charging lawyer – will always militate in favour of prosecuting, out of fear for their security of tenure should the MP for Rochdale – without having even seen the evidence – take a different view.

Prosecutions would be brought, not in the public interest, but in the personal interest of civil servants keeping their jobs.

How on earth is that a good idea?