Bad law reporting and a public dangerously disconnected from criminal justice

I have today written a piece for Legal Cheek, in which, like a stuck record, I bemoan the standard of public legal education and tabloid law reporting, and submit that the public should be outraged by the justice system — but not for the reasons they think.

If this sounds like your sort of thing, the article is here.

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Why those of us in the system must share the blame for the lack of public faith in criminal sentencing

Good news breaks from Newcastle Crown Court, where four men have been convicted and sentenced for serious offences involving child sexual exploitation. Soran Azizi, Palla Pour, Ribas Asad and Saman Faiaq Obaid each received sentences of imprisonment for crimes including trafficking for sexual exploitation, sexual activity with children and supplying controlled drugs, the latter a grimly familiar tool used by abusers to achieve the former.

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As I say, good news, and a good job by the Crown Prosecution Service. So why does it sound as if I’m taking a run-up to go off on a peevish tangent? Well, it’s because – and I accept that it sounds like a little thing, but bear with me – it’s because of this tweet from the official CPS account:

For now, let’s put to one side the question of whether this feeds into an increasing, Americanised tendency by the CPS to publicly cheer “tougher” sentences (this traditionally not being the role of the prosecutor in England and Wales, in stark contrast to the US system). I instead want to look briefly at that number – 32 years – because I think it’s an example of a deeply unhelpful trend in modern reporting.

The figure of 32 years is arrived at by aggregating the sentences of the four defendants. Azizi got 6 years, Pour got 12 years, Asad got 9 ½ years and Obaid received 4 years 9 months. And this aggregation, when you think about it, is an entirely pointless exercise. It tells us nothing about the seriousness of the offences committed. It tells us nothing about the sentence imposed in respect of each man. It tells us nothing about how long they will serve, and – importantly to many people – when they will be released.

Its only purpose appears to be to present an eye-catching headline figure to draw the reader in to the story. In a tabloid newspaper, this is one thing. But by the CPS?

The problem is not just that this headline does little to educate the casual reader who doesn’t study the press release down to the Notes to Editors. It’s that it contributes to a serious disconnect we have in criminal sentencing between the system and the general public. One of the most common complaints we hear from non-lawyers is that sentences frequently don’t mean what people think they mean. Part of this is because of the inherent complexity of sentencing legislation and early release provisions, which even judges struggle to interpret (Lord Philips in the Supreme Court famously said that “hell is a fair description” of this legislation). But part of the issue is because even in straightforward sentencing cases, the basics are not reported in their full context.

Anyone scanning the CPS Twitter account and seeing the words “32 years” would be forgiven for thinking that the men convicted in Newcastle were likely to be serving at least the best part of a decade in prison. In the case of Obaid, he will serve a maximum of 2 years and 4 ½ months, minus any time he has served on remand awaiting his sentence. None of the defendants will serve anything even close to half of 32 years. The most any one of them will serve is 6 years (Pour). Nowhere in the press release, or even in the notes to editors, is this spelt out. One can only hope that the vulnerable young victims of this predatory offending have had the real position fully explained to them.

I appreciate that the CPS tweeter was no doubt aiming for snappy, 140-character brevity, and that the main takeaway is that serious criminal behaviour has been successfully prosecuted and justly dealt with; but I do think this is a problem. This kind of headline inflation of sentences is how we end up with ridiculous red-top myths about serious sex offenders being released only a couple of years into a 22-year sentence, which in turn serves only to feed a toxic circular narrative of “soft sentences” and “joke justice”. We can’t possibly expect the public to have faith in criminal sentencing if the system adopts the same clickbait tropes.

I devote a lot of words on this blog to chiding journalists about accurate reporting of criminal cases. It’s regrettably evident that some need to be directed at those of us in the system as well.

The criminal law has no business interfering in bad relationships

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

The issue at hand is coercive but (generally) non-violent conduct in private relationships. Section 76 of the Serious Crime Act 2015 created a criminal offence of engaging in controlling or coercive behaviour in an intimate or family relationship, an offence which, it emerges, the police and prosecutorial agencies are not wielding with the vigour that campaigners had anticipated. Only 62 people have been charged under the legislation, as opposed to 20,000 for offences involving domestic violence over the same period.

The reason for this, I politely suggest, is twofold. First, this is a largely pointless law, re-criminalising already-criminalised conduct. And second, where it does provide for something new, it trespasses on territory over which the police cannot reasonably be expected to ride.

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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.

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:

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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 f**king 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 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 in crisis – 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 the vital signs out of the CPS, and that it’s a miracle some days that anyone gets prosecuted at all. But, again as I’ve said, it is disappointing, to put it mildly, that the DPP continues to deny that any problem existed.

The DPP’s retort to Davies recounting an occasion when he saw a prosecutor in court shuffling his papers as he struggled to find the right file was to point out that, ACTUALLY, one wouldn’t see papers being shuffled as mags’ cases are now all digital. So there. Zing.

Allow me to lay some truth on yo. I’ve spent many a cursed day prosecuting in the magistrates’ courts as an agent. Agent prosecutors are independent solicitors or (usually junior) barristers paid £200 a day by the CPS to prosecute cases when the CPS is short on staff, or where they realise at the last minute they’ve massively smurfed up. You are allocated a courtroom for a day, and prosecute everything that is listed in it. This will either be a “list’ court, in which you could have anything up to 50 “quick” cases, such as first appearances, allocation hearings (hearings to determine whether a case should be heard at the magistrates’ case or the Crown Court), onward remands (short administrative hearings for defendants in custody), legal applications and traffic offences. Or, more commonly as a barrister, it will be the trial court, in which listing will have crammed up to 8 trials in the hope that some might resolve.

For a CPS-employed prosecutor, who has a special £2k-a-pop laptop plugged into the electronic “Casework Management System (CMS)”, all the case papers should be available digitally (on those rare occasions that CMS is actually working). But for an agent, who is not permitted access to CMS, you get emailed at 6pm the night before a series of “e-briefs” – stretching to hundreds of pages – which you will print out at your own expense. These e-briefs are rarely complete, seldom comprehensible and will always be missing the latest information – such as the letter sent the day before by the defence solicitors informing the CPS that the defendant will be changing his plea to guilty, or the last minute review from the CPS lawyer decreeing that the case should be terminated.

So after the agent has been up all night trying to derive meaning from the trial files, s/he will have to spend the time between the court building opening (9:00am) and the courtroom starting (9:45am) to endeavour to check with a CPS employee what is actually happening in each case, track down the reams of missing evidence, prepare for trial (i.e. think about what you’re going to say in your speeches, what questions to ask etc), speak to the 15 witnesses who have turned up, chase the ones who haven’t, liaise with the police and fence with the 8 defence solicitors vying for your attention as they howl for vital material that the CPS has failed to serve, and that you can’t obtain without access to the Casework Management System. As you sprint from witness suite to CPS office trying desperately to piece together something of an effective trial, you have three indifferent magistrates screeching for your attendance in court, “as we can’t sit here wasting time, Mx Barrister”. If the defence approach you to make an offer – e.g. the defendant will plead guilty to some charges if you drop the others – your professional judgment, as the person with knowledge and conduct of the trial, is worthless and the decision whether to accept has to be made by a Senior or Divisional Crown Prosecutor, sitting in an office on the other side of the county. Who is rarely available on the phone to make that decision, being perennially in a Very Important Meeting with other CPS bureaucrats. Meanwhile if there is a particularly complex case – such as a youth defendant in custody seeking bail – listed in another courtroom, it will be transferred to you if the CPS prosecutor in that court doesn’t have the necessary experience, and you will be expected to deal with it there and then. You will be allowed no time to read it, and will be expected to simply stand up and divine the prosecution case. While mentally working through the preparation for the remaining trials, and working out just how you’re going to get that critical witness’ evidence completed so that she can go and pick her child up from school at 3 (which Witness Care hadn’t established until about five minutes ago was an issue). Occasionally, an entire trial will be transferred to you from another court. And again, you will be expected to get to your feet, having not seen the case before, and crack on with a criminal trial.

The DPP told the Justice Committee that she had “never seen a prosecutor in court reading out a file for the first time”. Those solicitors and barristers earning their meagre crust in the magistrates’ court will tell you – it happens every single day. And for the DPP to pretend it doesn’t, and that it’s not a scar on the conscience of the justice system that we can’t afford to treat the prosecution of criminal offences with the care and attention that victims, defendants and the public deserve, only serves to legitimise the words of Philip Davies. Which is perhaps the greatest tragedy of all.

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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.

Is the CPS really considering putting a dead man on trial?

So, Lord Greville Janner has defiantly – and incomparably selfishly – gone and shuffled off this mortal coil before the various allegations against him can be the subject of a trial of the facts in April next year.

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CPS – breaking new ground?

There, one would think, this wholly sorry example of the criminal justice system misfiring at almost every turn grinds to a halt, the remaining forums for an airing of the complaints being the Goddard Inquiry into Child Sexual Abuse or the civil courts.

Or perhaps not. Because following what lawyers assumed was some blue-sky dead-air-filling by former Director of Public Prosecutions Ken Macdonald on Radio 4 today, in which he ruminated on the theoretical arguments in favour of prosecuting a dead man, the Crown Prosecution Service have this afternoon confirmed that this is exactly what they are considering doing:

“Greville Janner faced criminal proceedings for child sex offences, with a trial of the facts scheduled to take place in April 2016.

When a defendant dies during criminal proceedings, it is usual that the case no longer goes ahead following formal confirmation of the defendant’s death at a hearing before the court.

However, we are considering the procedural implications of this specific case. As the High Court will close today until January 11 2016, there can be no hearing before that date.

It is right that this matter is considered properly in open court, and we will therefore not be commenting further ahead of a court hearing.”

Having sought the accumulated wisdom of lawyers far more knowledgeable than myself, I have had confirmed my understanding that this is something that has never happened before in the entirety of British legal history. Indeed, it is unclear exactly how or whether a trial of the deceased would even be lawfully permissible.

Regrettably the usual legal sources are arid on this point. Archbold Criminal Pleading, Evidence & Practice – the leading practitioner text for criminal lawyers – offers a very brief note on the practicalities of discontinuing proceedings on indictment where a defendant dies before trial, but nothing on how the state might persist with a trial in those circumstances. Ditto Blackstone’s Criminal Practice. The many tens of thousands of pages comprising Halsbury’s Laws prove unable to summon up a single instance where the Crown has pursued a prosecution after an accused person has died. One further resource provides a succinct paragraph on discontinuing prosecutions where the accused snuffs it, the plain assumption being that no prosecuting authority in its right mind would continue in those circumstances. Its name? The CPS website.

A trial of the facts, notwithstanding that the defendant (who will have been found “unfit to plead” – i.e. incapable of following the case and providing instructions) cannot and will not meaningfully participate, can be justified on the grounds that the court will, upon a finding that a defendant “did the act”, dispose of the case constructively – normally through the imposition of a supervision order or a hospital order, to assist rehabilitation and protect the public. Of course, in Greville Janner’s case, neither of these outcomes were likely given his age and infirmity, and so the ultimate outcome would only ever have been the third option open to the court – an absolute discharge (which is quite literally nothing). This was the rationale, in fact, for DPP Alison Saunders originally deciding against a trial of the facts – it would achieve nothing.

Now we are in the perverse position where Ken Macdonald can suggest – with a certain degree of artificial logic – that as a trial of the facts would have achieved little in any event, it actually doesn’t matter whether Janner’s alive or not. He was never going to play a meaningful part, so why not just crack on, get the inevitable finding of fact to carve on his gravestone and we can all go home happy. Certainly this is the preferred approach of Liz Dux, the Slater & Gordon lawyer and spokesperson-at-large for the complainants. She – sharing her rather troubling, and recurring, lack of insight into criminal proceedings – was also on Radio 4 this morning, declaring how her clients want the case to go ahead regardless, omitting to mention that this would of course make the compensation claims she is running on their behalf just that little bit easier.

But oiling the wheels for Slater & Gordon collecting their success uplift is not what the criminal process is for. Nor, being less cynical, is it a cathartic pulpit for the futile airing of allegations, however credible. I’ll be gladly corrected and pointed towards the jurisprude who says otherwise, but the criminal process, as I understood it from behind my veil of ignorance, is largely designed to convict and punish the guilty, to help to stop them reoffending, and to protect the innocent. Trying a dead man achieves none of those. Rather the impression one gets is that the CPS, mindful of the (largely misinformed) vitriol tipped over Alison Saunders the first time she tried to put the kibosh on this futile prosecution, are so scared of having to defend their position that they will not only participate in but openly facilitate this farce.

I have every sympathy with any person who has suffered abuse and is seeking justice. But justice is not achieved by sticking a dead man in the dock and pelting him with fruit. And prosecutorial errors in the past are not remedied today by holding what can only be a Putin-esque show trial in which the defendant is, quite literally, a corpse.


UPDATE: I am obliged to the many contributors on Twitter who are manfully and womanfully scouring the archives for prior examples of posthumous trials in Great Britain. I should point out (not from my own knowledge) to those suggesting the trials of the deceased Regicides in 1660 – they were as I understand convicted by Act of Attainder, not by trial.

Further suggestions welcome.