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

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

Honestly.

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

Well not really.

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

A not-so-secret document

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

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

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

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

Lawyers – £69 per hour

Paralegals – £51 per hour

Support staff – £44 per hour

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

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

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

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

A burglar

£6 net an hour to defend this fellow

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

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

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

Now return to the above chart.

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

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

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

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

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

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

A legal tree

A legal stories tree

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

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

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

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

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

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

Michael and the Mystery of the Disappearing Prosecution Service

And now, the latest instalment in a new children’s series provisionally entitled “Michael Meets The Justice System”, possibly published by Penguin (and now, happily, no longer barred to prisoners), in which the reader joins brand new Lord Chancellor and Secretary of State for Justice Michael Gove on a rollercoaster of head-scratching and belly laughs as he tries to solve riddles and brainteasers geared around the subject of criminal justice.

Today’s wacky puzzle sees Michael try to figure out whether there is any correlation – or even causation – between increasing inertia in the Crown Prosecution Service and the announcement of yet further cuts to the CPS budget.

The latest announcement – which in fact foreshadowed George Osborne’s edict that unprotected governmental departments, such as the Ministry of Justice, should find ways to absorb a further 40% cut – foretells the Crown Prosecution Service budget for 2015-2016 reduced to £482.3 million.

By way of homage to that modern fashion of extrapolating expenditure out of context to make a seemingly impressive point, that works out at less than 2p per day per person. 14 pence per week for a prosecution service. Which represents – and here I pootle towards my actual point – a cut of nearly 30% since 2008-2009.

Thirty per cent. Cut from a public service that was struggling even back then.

It makes for a far less hashtagable cause than #SaveLegalAid, but #SaveTheCPS is equally deserving of a Twitter campaign and some fashionable celebrity advocates. Pat Sharp, perhaps. Or Mary Berry. Because, in the words of Mrs Berry (probably), without a properly funded prosecution service everything goes to shit.

Cases aren’t properly reviewed if the CPS lawyer is dumped with two additional cases for every one she finishes reviewing. Important directions in court cases get missed if a CPS caseworker is running between the five courts he is expected to cover that day. Critical evidence isn’t gathered if there are no administrative staff to receive counsel’s written advice and forward it to the police. Witnesses don’t turn up to trial if there are no Witness Care officers to remind them.

And, ultimately, if the money isn’t there to properly prosecute offences, serious crimes go unpunished.

In a recent case, I was instructed to prosecute an extremely nasty armed robbery. Bookmakers, balaclavas, machetes and a flock of terrified, traumatised members of the public, all of whom are, unsurprisingly, receiving counselling to help them come to terms with something lifted from a nightmare.

The police had put in the hours investigating. Crime Scene Investigators had combed the premises, and had uncovered scientific material linking the Defendant to the scene. This evidence, however, has to be put into a certain format in order to be admissible in court. This is standard procedure. But it also costs money.

After repeated adjournments for the CPS to obtain this crucial evidence – after written advice from me, after directions from two Judges – the memo came through to me. We can’t afford to get the evidence. Bin the case.

A serious armed robbery was abandoned by the Crown Prosecution Service solely for reasons of finance.

I didn’t blog about this at the time. I didn’t even tweet about it – because frankly it is just par for the course. It will strike any criminal barrister or any judge as entirely unremarkable. Cases are thrown out by judges and abandoned by the CPS every single day for a variety of reasons, all of which can be traced back to a lack of resources. Crucial evidence not obtained? Lack of resources. Evidence obtained but not served on the parties? Lack of resources. Case where there is no evidence dragged to the day of trial when the CPS finally review the case and realise it’s doomed? Lack of resources. Highly relevant material that fatally undermines the prosecution case not disclosed to the defence, resulting in wrongful conviction of innocent man? Lack. Of. Resources.

A lot of unfriendly fire is directed towards the CPS, particularly from the bunkers of the criminal Bar, and while I would contend that institutionally it is an example of the Peter Principle in depressing, remorseless action, there are many decent, hardworking individuals trapped within. Lawyers, caseworkers and administrators who actually give a damn. Who recognise the constitutional magnitude of an operative prosecution service, who aspire to making a difference and who despair at the vicious circle of cuts and inefficiency that renders their working life a cruel pastiche of Groundhog Day, only inverted so that they are Ned and the government is Bill Murray, punching them day after day after day in their stupidly optimistic faces.

giphy

The prosecutorial system is not close to breaking point, or hopelessly stretched, or starved of resources, or any other splash-friendly cliché. It is fucked. Fucked partly by incompetence, but primarily fucked daily, nightly and ever-so-rightly by executive arrogance that assumes the public will be too impressed by the balance sheet to notice the absence of a functioning justice system.

None of this is new.

So when Michael Gove, in his recently publicised speech, gave the impression of being taken by surprise by the pervasive slothfulness of the criminal courts, he was bearing witness either to his naivety or his disingenuity. It’s akin to blocking a sink, turning on the taps and returning a week later, tutting and shaking your head incredulously at how very wet everything is. And then turning the taps on a little bit more and walking out.

This, Mr Gove, is the natural consequence of chronically underfunding an essential limb of the legal system. The real puzzle is why, having identified the problem, you decide that the solution is not only to further cut the CPS, but to pursue the devastation of legal aid for defendants as well.

#SaveLegalAid. And #SaveTheCPS.

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.