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 particular 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 professional post-qualification career has reportedly been mostly spent employed by the Crown Prosecution Service, would therefore not on paper have been my cup of chai for the position of DPP. I also find 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 pursuit of journalists betrayed an institutional lack of understanding of the offence of committing misconduct in public office. Her comments on consent and rape suggested 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?

What I go to court for

I am not a habitually angry person. Those who know me professionally would, I hope, attest to my happy-go-lucky demeanour and brimming joie de vivre. By way of example, I considered illustrating this blogpost with a jovial (and nostalgic) nod to Busted’s What I Go To School For.

In fact:

Busted

See? Jocular. Convivial. That’s me all over.

But barely a month into the job, new Lord Chancellor and Justice Secretary Michael Gove has managed to dig a fork right under my rib, not so much tickling at my intercostal muscle as lancing it clean through.

For while Mr Gove made plenty of flirtatious noises during today’s speech to the Legatum Institute – his un-Grayling-like acknowledgment of the rule of law, of the inefficiencies crippling the criminal courts, and of the remote possibility that legal aid lawyers are not simply slumped with their faces in the money trough – what chases, pins and tortures my gander is the throwaway allusion to the panacea of pro bono. And in particular, the helpful suggestion that the chronic inefficiencies in the courts could be ameliorated if the lawyers did just a little more for free:

“When it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the minimum wage.”

Now I know that, as Mr Gove told World At One, his comments were directed primarily towards Magic Circle (or “golden circle”, as Gove curiously put it) city firms and, presumably, chancery and commercial sets of chambers. But. But but but but but. We will put to one side, in the spirit of charity, any perceived insinuation that criminal legal aid work is the kind of jape that a Mergers & Acquisitions associate at Allen & Ovary can knock out during a 10-minute power walk round Bishops Square, rather than the most rapid-changing, pulsating and chaotic area of law, one in which people specialise for YEARS until feeling even vaguely competent to appear before a Crown Court Circuit Judge.

No, what I would like to take this opportunity to mount my soapbox, conveniently high up and equine-shaped, and shout about, is what as a criminal barrister I ALREADY do pro bono. What successive governments of every political colour, the Legal Aid Agency and the Crown Prosecution Service assume that I will do for free. And what I do, in fact, do for free.

So, herewith a non-exhaustive list:

1) If a trial I am defending is adjourned (as happened today, in fact), for reasons entirely out of my control – an interpreter not attending, a prosecution witness unavailable, lack of court time in spite of courtrooms sitting empty in that very building – I receive nothing. The Legal Aid Agency includes the day spent at court waiting to re-list that trial within one of my four “standard appearances” built into the already-slashed “brief fee”, and I get nothing for that day.

2) If a trial I have prepared is refixed by the court for a date I cannot do, I lose the brief, and get paid nothing at all for the hours spent preparing for trial.

3) If the court suddenly lists one of my cases for a mention hearing due to – for example – the CPS not having confirmed that they are ready for trial, and I am unable to attend, I have to pay someone else to go in my stead. I actually lose money, rather than risk showing the court the discourtesy of not attending.

4) I get paid nothing for drafting advices, legal applications or skeleton arguments, either for the prosecution or the defence. Depending on the complexity of the case, advices on evidence can take up to a full day, particularly if I am instructed (as frequently I am) to resuscitate a dying fraud or drugs conspiracy that the CPS have buggered up before admitting defeat and instructing counsel. This free advice is done on a day that I have to take out of court, meaning I earn nothing twice over.

5) I get paid nothing for drafting Defence Case Statements, theoretically the preserve of the instructing solicitor, but frequently thrust upon the barrister to knock up.

6) I get paid nothing for a Plea and Case Management Hearing when defending. Nothing for completing the 30-page form, nothing for the lengthy conference with the Client beforehand, nothing for waiting all day while the court slogs its way through a 40-case list. And nothing when the PCMH is adjourned due to the CPS having not served the papers.

7) I get paid nothing for the second day of a trial. I receive a fee to cover, notionally, preparation and the first day of trial. I receive a “refresher” fee for day 3 and onwards. But day 2 of any trial is a freebie.

8) I get paid nothing for reading Unused Material. This is the often voluminous material gathered by the prosecution in the course of the investigation, which they have a duty to disclose to the defence if it is capable of assisting the defence case or undermining the prosecution case. For complex cases – particularly involving sexual allegations – this can amount to quite literally crates and crates of old (and often handwritten) Social Services documents and medical records. I have to read every word, as the key to my Client’s case can be buried within, but get paid not a penny.

9) I occasionally get paid nothing for reading the actual evidence. The fee for a case is calculated by reference to the number of pages of prosecution evidence (PPE). Where the prosecution choose to serve evidence electronically on disc, rather than on paper, a byzantine bartering ritual kicks in where the Legal Aid Agency can choose to arbitrarily withhold the fee I would have received, had the exact same evidence been served on paper.

10) I get paid nothing where a Client decides – for reasons entirely outwith my (admittedly limited) competence – to instruct new representation. I recently spent approximately 100 hours preparing for a complex Proceeds of Crime Act hearing, involving thousands of pages and hundreds of miles of travelling to see the Client in prison to take instructions. When, a month before the hearing, the Client dispensed of the services of my instructing solicitors, his new firm brought in their preferred counsel, and I was left unable to bill a farthing for my work.

I could go on. I want to go on. But I also want to weep. Because any serious discussion about the future of the criminal justice system which does not recognise that the courts only keep running because of the unsustainable goodwill of those involved, is not a serious discussion at all. It’s a charade. And with a few poorly-chosen sentiments, Mr Gove has indicated that he’s only here to play the game.

Just another victim

Burglary is not a serious offence. Or rather, it is not considered a serious offence by the criminal justice system. The violation of the sanctity of a person’s home, of a family’s refuge, of a child’s bedroom, invariably forms the bedrock of judicial admonishment in sentencing remarks, but the reality is common knowledge among anyone suffering a passing acquaintanceship with the criminal process. Burglaries just aren’t that important. They are too ubiquitous (only shoplifting and possessing Class B drugs appear before the Crown Courts more frequently). They fall within the lowest categorisation of offences for the purpose of the CPS Advocate Panel, meaning that they can be, and usually are, prosecuted by the least experienced prosecutors. The cases attract among the lowest fees, both for prosecutors and defence lawyers. The Sentencing Council Guidelines, which courts are required to follow when passing sentence, pitch the starting point for some domestic burglaries at a community order. Of those sentenced to custody, most will be released within 12 months.

It is of course right that there are other, more serious, offences. It is right that there will be defendants for whom and cases in which custody is, for a variety of reasons, not appropriate. It is further right that finite resources must be proportionately targeted.

But every now and then, I despair at the obvious disconnect between the system and the people whom it purports to protect. At how frequently the system is blind, or wilfully ignorant, to the devastation that these offences can wreak.

Count the failings in this recent case.

A house was burgled, and various high value items were stolen, including the victim’s car. An hour later, police found the car, and arrested its two occupants – the defendants. In the back of the vehicle were other items taken in the burglary, including a TV, on which were found the fingerprints of one of the defendants. A set of circumstances pointing, one might feel, fairly strongly to the defendants being the burglars.

So what happened?

  1. For reasons unexplained, the Crown Prosecution Service elected to charge one of the defendants not with burglary, but with “being carried in a vehicle without the owner’s consent”, a minor summary-only matter carrying a maximum sentence of 6 months’ imprisonment.
  2. The second defendant was charged with burglary, but when a Judge criticised the CPS’ decision to under-charge the first defendant, the CPS responded by dropping the burglary against the second defendant as well.
  3. The CPS has a policy of writing “Victim Letters” explaining the progress of a case. Having dropped the burglary charges, the CPS proceeded to send a letter purporting to tell the victim that three men had been convicted of the burglary of his house.
  4. I say “purported to tell this victim”, because the CPS in fact sent this erroneous letter to the wrong person – to a victim in an entirely different burglary.
  5. This second victim, having received a letter informing her that three men had been convicted of burgling her house, took an unpaid day off from work and turned up at court to watch the sentence hearing. Prosecuting counsel had to break the news that, far from there being three hoodlums convicted of the burglary of her house, enquiries suggested that the police had months ago closed the investigation as unsolved without bothering to tell the victim.
  6. The second victim had told the police at the time of the burglary about CCTV which would in all likelihood have captured the incident. Nothing was done about this. Months later, this CCTV will no longer be in existence.

A catalogue of cock-ups. To the police, this was just another burglary. To the automaton sending the Victim Letter, this was just another victim. To the CPS, just one of 14,000 burglaries they will charge this year. But to the people whose lives were invaded, an inexplicable systemic failure on every level that will have violently stripped their faith in the justice system.

Nothing will be done. No lessons will be learned. Because this story is not unusual. Not one bit of it will catch anyone in-the-know by surprise. It is seen every day, in every courtroom, condemned by every judge, unexplained by every prosecutor, exploited by every defendant. The chaos is not particular to burglaries – it is sprayed across virtually every prosecution – but in an age of police and CPS budget-slashing and staff-cutting, it’s the cases at the bottom of the pile, and the victims of those unfashionable, unimportant crimes, that suffer the most.