Posts Tagged ‘Advocacy’

Two days ago the CPS inspectorate announced that there was a quality gap between the advocacy skills of the CPS lawyers compared to those in private practice. In the Magistrates’ Court one of the areas which needs to be improved is cross examination.

I’m sorry, cross examination? For non-lawyers, cross examination is where one asks questions of the other side’s witnesses. So for your average CPS Mags’ Court prosecutor, asking the Defendant questions.

I’m sorry, but, cross examination, although an art at the higher end of things, is a pretty rudimentary skill in the Magistrates. If there’s a problem there, then there’s real problems.

When I was first on my feet I never thought that I outgunned the local CPS. Things balanced out, yes they were busy and had less preparation time, but I was green and still learning.

Now?

Frightening

I’ve been back in the Magistrates’ Court for two days this week. For two trials. I won both. Not because I wear a wig for a living, not because I went to Oxford, not because I’m sneaky, not because I’m lucky, not because of anything to do with me… (and worse, not necessarily due to the evidence!)

…but with them.

During both trials, the CPS in-house Prosecutor sent texts on their iPhone.

Neither brought a practitioner text into Court.

And neither had any recent authorities at their mental or physical fingertips.

In the first trial a lay bench had to explain the meaning of hearsay to the prosecutor as she continually attempted to adduce it, to the extent that the Chair of the Bench had to stop a witness and bark – ‘no, we’re not allowed to hear it.’

And today, during my half-time submission the announcement from the Prosecutor which left everyone in Court stunned, ‘this isn’t the Crown Court, you don’t have to prove all the elements of the offence.’ The Legal Advisor, stood up and advised the Magistrates immediately that they must ignore what she said, the Magistrates were in shock and much to my pleasant surprise, the Chair of the Bench announced – ‘it’s the same offence here as in the Crown Court, you still have to make us sure, and you have to make us sure of  all the elements of the offence – the rules of evidence still apply.’

The first 6 pupil I have had with me to learn about the Magistrates’ Court cannot believe what he’s seeing and asked me if it’s always like this.

No, it’s not always been like this…

The reality is with money being cut the CPS have fewer available staff and have a much smaller budget for bringing in barristers.

The CPS extradition unit is Rolls Royce, all the lawyers are very good and are well resourced. My experience too of the terrorism team and the mass public disorder guys are the same.

But of course extradition is high profile and potentially has diplomatic impact. And, big scale public order offences are heavily featured in the media.

Yet, the reality is for man or woman on the street that they are not going to be involved in that type of case. They are going to have seen a shoplifting, or be a victim in a pub brawl, they will rely on the in-house CPS advocate.

And the reality is? Lawyers who joined the CPS to litigate, not advocate, have been sent out to the Magistrates. The experienced lawyers in the Magistrates’ Court are being promoted into management roles and away from the Courts. Or, those experienced lawyers are being forced into taking their Higher Rights and being made to process high volume hearings in the Crown Court.

And they’re being expected to do more. They’ll soon have to prosecute everything for the UKBA, they’ve already had to take in all the Revenue and Customs Prosecutions.

So, actually, I think they’re being expected to do a lot, too much.

And can they attract the talent? When I was coming to the Bar, the CPS were offering pupillage, it paid more than I would have got at the independent bar, would have given me a pension and better working conditions. Experienced barristers too were being brought in, offered decent salaries and a pension and a better work life balance, but that has ended too.

The solution?

Certainly not throwing more and more abuse at the CPS. And not throwing more cases at them!

1) Give power back to the prosecutor. Barristers with 20 or 30 years experience are no longer in control of cases. The specialist advocate before she makes a decision has to phone the CPS office and ask permission to do things. That advocate commands the fee (which is still, not great) that they do because of their speciality, give them the power back.

2) Get real(istic). Just because a case involves a domestic element, or a racial element does not mean it automatically has to be prosecuted. There’s a strong public interest in prosecuting these offences, but it doesn’t mean there’s strong enough evidence. Far too many cases come to court which have no hope of success.

3) Go it alone. The Government need to butt out of prosecuting as do the police. The DPP is not a member of the cabinet, he is not an MP. He is a civil servant and like other civil servants he ought to be able to enjoy the independence of the civil service. Cut the KPIs. As too, should the police realise they are not instructing the CPS. The opposite. Police officers should not be able to ‘appeal’ the decisions of prosecutors. Officers-in-charge of cases are not lawyers, they do not know better than the CPS, they should not be able to apply pressure for them to take a certain course.

Justice gap

A gap in quality of advocacy causes a risk of a gap in justice. I don’t want to win cases simply because my opponent is a shattered individual who never wanted to be an advocate.

The CPS are not bad lawyersfar from it. But they are lawyers who are being expected to do jobs they never wanted to do, or were trained to do. Now, they’ll be prosecuting in higher courts, with new offences they have no experience of.

Do what the private prosecutors do (RSPCA, local authorities etc) focus prosecutions, really review them and properly fund them. Don’t push prosecutions through because it’ll win political points, even if it doesn’t win cases.

My view will always be, it’s better that 100 guilty people go free than 1 innocent person is imprisoned.

The view of the prosecutor should be, it’s better to let 20 s.5/drunk and disorder cases go unprosecuted than a serious assault/burglary collapse for want of resources.

FTD

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