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

“For last year’s words belong to last year’s language

And next year’s words await another voice.

And to make an end is to make a beginning.”

― Little Gidding, T.S. Eliot

Fashion dictates that the first written offering of a new year be contorted around a vague theme of resolutions and renewal. And those who know me would surely attest that if I am anything, it is, in the words of Muswell Hill’s finest, a dedicated follower of fashion. So there, above, is your inspirational New Year quote. We can even all pretend it was plucked fully-formed from my repertoire of feel-good literary bon mots, rather than copy-and-pasted from Google.

I like The Kinks. They really get me.

I like The Kinks. They really get me.

With that out of the way, I can reassure that what I am about to say is in no way symptomatic of any New Year’s resolve to change. It is not a January volte-face, nor does it represent an overspill of festive goodwill. I in fact said it, fleetingly, guiltily, sometime in mid-December when this would have been an achingly current blogpost had I got round to it. But it does need saying. And here it is:

Philip Davies MP was right about something.

The date, for future annual commemoration, was 15th December 2015. The day that Director of Public Prosecutions Alison Saunders appeared before the Justice Select Committee to face questioning over the performance of the Crown Prosecution Service. I have previously politely queried Mr Davies’ suitability for a position on this committee, in light of various observations he has made on the topic of criminal justice. But here, at this hour, with the DPP at his mercy, he triumphantly made what I am sure he would agree was his first ever positive contribution to public life.

Labelling her “complacent”, Davies told the DPP this:

“One of the most depressing things anyone can possibly do is go to court and see the standard of the crown prosecutors – particularly at the magistrates’ court, where it is often little more than a shambles. You have got crown prosecutors who are literally reading the case file out for the first time.”

And

“It is a shambles. If a victim is actually sat there coming to see their bit of justice being done, what on earth must they think when they see a crown prosecutor reading out the thing for the first time, or not even having the files?”

I’ve said before that I recognise the invidious position that the DPP finds herself in. I don’t expect her to get to her feet and angrily boom that relentless budget cuts have kicked ten types of excrement out of the festering penniless corpse of the CPS, and that it’s a miracle some days that anyone gets prosecuted at all. But, again as I’ve said, it is disappointing, to put it mildly, that the DPP continues to deny that any problem existed.

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

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

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

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

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

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UPDATE: I should clarify, following various comments on Twitter, that none of the above is intended to suggest that CPS-employed prosecutors have it any easier than agents. They don’t. Virtually all of the above, and more besides, applies to CPS prosecutors as well. And what makes the DPP’s blasé ripostes even more aggravating is that, with each pronouncement, she is denying, and thereby preserving, the intolerable working conditions through which her organisation is dragging its employees, day after miserable day.

Why on earth should the DPP resign over Lord Janner?

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

basil

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

How on earth is that a good idea?