Posts Tagged ‘CPS’

Excuse the geek factor for a moment, but when Keir Starmer was appointed DPP I was excited. Excited as I thought it meant a complete change in the country’s prosecution policy. Less resources would be wasted on hopeless trials, there’d be less criminalisation of protesters, there’d be more prosecutions around misfeasance and there would be less of a pursuit of ancillary orders like ASBOs, restraining orders, control orders etc…

What a huge disappointment.

I’m not sure what disappointed me more, his initial decision and subsequent weak looking flip-flop on the prosecution of PC Simon Harwood, or the painful waste of money that was the ‘Twitter Joke Trial’ and the three appeals thereafter…

Now, out of office, all we hear, is his name and then the word closely there associated is, ‘victim’. And, the second word closely associated to him is, ‘Labour’. And in this strange dance out of DPP’s offices and back to private practice, the message (being pumped by someone, I presume in One Brewer’s Green) is that Keir Starmer will be standing for election, as a Labour candidate and he is going to be a champion of victim’s rights.

On the face of it, the cynics will grin a bit, and mentally note how terribly populist it all seems. As someone with a, ‘rights’ based practice, I thought I’d read what appeared to be the flag ship document from Starmer on the subject, in the Guardian, in ‘Comment is Free’.

http://www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-system-victims-law-public-prosecutions

There’s the link…

… and read it a couple of times. I actually read it three times. And I genuinely wonder if he has written it. Not because of the contents but the lack thereof. The essential point you’ll have all gathered from it is, ‘we need a victim’s law’ – but then there is absolutely nothing in the article that says what should be in it, the comments below say it all:

“So – are you proposing the most major shift ever in UK law to move away from the adversarial system (in all types of cases, not just cases where sex and abuse is involved)?”

“What system would you suggest?

One without lawyers? Just draw straws – short and your guilty.”

“Having taken the trouble to set out what you see as major flaws in the handling of cases of alleged abuse, all you are able to suggest by way of remedy is a “Victims’ Law” the contents of which you make no attempt to describe and a rebranding of the criminal justice system to incorporate the already discredited bureaucratic platitude “service”.

These are serious issues. Can I suggest you come back when you have given the matter more thought.”

And it goes on… and on….

The whole article is two dimensional. It’s meaningless.

Once you get over the fact that he hasn’t suggested what will be in his ‘victim’s law’, you then move to his justification of it. Most of it seems to be based on the fact that a number of victims told the CPS to quite literally, ‘fuck off’ – Starmer does not blame this on the CPS or the police, instead he blames it on our judicial system, and in particular the adversarial system.

The truth about the adversarial system

It’s easy to blame the adversarial system. It’s easy because it’s the dramatic bit, it’s the bit, where somebody stands up and suggests to the witness they’re mistaken, or they’re telling lies. But very rare is it dramatic like it is on TV, quite often in fact, when we call stand up and call someone a liar, we do so, because we know so. How do we know, generally, a piece of physical evidence, CCTV, a neutral witness and so forth.

It’s not nice being called a liar.

It’s certainly not being nice being caught as a liar.

The reason the CPS were told to fuck off…

May well be because a particular witness was caught in a lie. Every criminal barrister can tell you at least 3 or 4 stories, where the CCTV of an incident (which of course the CPS have!) has completely gone against a witness and their version of events.

Of course, there are other times where witnesses and victims don’t want to give evidence. There’s nothing quite as horrible as seeing a woman being frog marched into Court by coppers to simply cry in the witness box for 20 minutes. That woman (or indeed man) may well have written three or four witness statements, they might all be different, a couple of them may even say they don’t support the proceedings.

It is so horribly nannying, to say we’re going to put victims at the centre of criminal justice but at the same time say they don’t have any right to choose. It irks me so. You either have an impersonal system where by the state is treated almost like the victim, or you have a personal system where it is almost as if the victim directs the prosecution. But if you have the latter you have to let the victim choose, not just presume it’s right for them and sally forth on a prosecution against their will.

Oh, and if you do decide you’re going to prosecute someone against a victim’s will, then at least have the dignity and respect to prosecute the right offence. Strangulation of a woman, throwing a woman down the stairs, breaking her bones, breaking the skin, making her bleed, is not a battery, it’s an offence triable on indictment with a commensurate sentence.

And when you prosecute an offence, could you have the decency to do as follows:

– Send a lawyer with an up to date practitioners’ text. The law has changed since 2009.

– Send a lawyer who has had the papers for more than 30 minutes before the trial starts.

– Send a lawyer who has a level of advocacy whereby at the very least they can compete with a second six pupil*

– It it’s in the Crown Court, pick a barrister and stick with them

– Don’t reduce them to a X or tick system

– Be certain to follow the barrister’s advice on charge and on evidence.

– Be courteous and actually reply to the police officer in charge’s emails

– Don’t lose evidence

– Don’t lose witnesses

– Don’t lose simple cases

(Can I return to the ‘*’ point for a minute. One of the big things to improve CPS advocacy was to send round lecterns for CPS advocates in all Magistrates’ Courts. Fundamentally that makes no difference. Can I say why the standard of a second six pupil is the minimum (( and it’s not solicitor v barrister)) – it’s this: a second six pupil has had the following training: a year in a classroom learning about and doing advocacy exercises, 6 months following around and watch a senior barrister and their advocacy, has completed a course run by senior barristers and Judges as to their advocacy. CPS lose cases because a lot of their lawyers are not advocates.).

Don’t take an obvious point

Labour are taking the obvious point that it’s tough for victims of violent and sexual crime to give evidence. I quite agree. But, a 2D, half arsed, ‘victim’s law’ is not the answer.

And it’s horribly transparent, and disappointing, that you’d use an ex DPP ‘from the other side’ to try and push the point. It looks desperate.

The Criminal Justice Act 2003, did all sorts of damage to the English justice system, it was not properly drafted and has taken 10 years to be litigated and re-litigated. Please do not vote for a ‘Victim’s Law’ – it’s hollow and crass. Vote for a political party that will take the CPS, and take them to task rather than blaming a perfectly good, world replicated, safety conscious adversarial system.

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For want of prosecution

Posted: 24/06/2013 in Barrister, Uncategorized
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Contrary to popular belief, criminal defence lawyers do not have an arsenal of ‘tricks of the trade’ at their fingertips which allow them to take advantage of ‘loopholes’. The famed, ‘technicality’, is a rarity.

To stop a trial before you set sail takes a lot to do. One of the great joys in my career has been arguing that a criminal trial would be so unfair that the Court ought not hear it. I’ve won a few of those arguments, almost always because of police misconduct or missing evidence.

These are called abuse of process arguments. A lot of time is spent at Bar School teaching people about such arguments, a lot of time spent by barristers and solicitors debating such arguments and often large parts of the Court 2 and 3 list at the Royal Courts of Justice debating them on appeal.

One thing you don’t spend a lot of time learning about is another way of stopping a trial: having it dismissed for want of prosecutor.

The presumption these days

It is presumed these days that  if a Defendant does not turn up for her trial that it will go on without her. And what you’re taught at Bar School (albeit for five minutes on a Friday afternoon after you’ve been in the pub at lunch) is that if a prosecutor does not turn up to do your trial, then one apply for a case to be dismissed for want of prosecution.

The law can be put quickly enough: The leading case is R (on the application of CPS) v Portsmouth Crown Court 23. The reasoning in Portsmouth can be summarised as such: if the Prosecutor/Respondent fails to attend, the Court should not simply dismiss the charge/ allow the appeal, (a) without making vigorous enquiries as to the Prosecutor/Respondent’s whereabouts, and (b) if having made those enquiries it turns out that there is a prosecutor en route and the case is ready to be presented.

Indeed, in Portsmouth the earlier case of the Hendon Justices [1967] 1 QB 167 was noted, in particular at 174C, Mann LJ, giving the judgment of the court, said:

“However, the duty of the court is to hear informations which are properly
before it. The prosecution has a right to be heard and there is a public
interest that, save in exceptional circumstances, it should be heard. A
court’s irritation at the absence of a prosecutor at the appointed time is
understandable. That said, it can seldom be reasonable to exercise the power.

So, no prosecutor, no reason,  no chance of starting the trial, then it is possible to apply to have the case dismissed.

Time to mark that page

An application to dismiss a case for want of prosecution is a rare thing. Thus why such little time is spent teaching it and it is rare that a lawyer will have the law in this regard at their fingerprints.

But, it would seem that times are changing. In the last two weeks, I have been turning up the law twice.

On the first occassion, I was doing a two day appeal in the Crown Court, nobody arrived to respond to the appeal. After three hours waiting and what was estimated at the Judge as being £5000 worth of wasted costs, the appeal was adjourned.

Today, three barristers, waited to start three different trials. No prosecutor arrived until lunch time and no reason was given why.

It’s all a game

Quite often people say to me, ‘oh I suppose it’s all a game to you’. To an extent part of the joy of being an advocate is persuading a Court to your position and gaining success for your client.

Abuse of process arguments are an art form in that regard.

But, this is no art at all. This is running from one end of the pitch and depositing the ball in the Prosecution’s net.

It does nothing for the reputation of our justice system at all, it makes it look weak and ineffectual.

It must too be taken as an alarm signal that the CPS is on the verge of collapse.

But, defence lawyers and the Judiciary should consider making and granting applications to dismiss prosecutions for want of prosecutor. Without such applications the problem will simply remain a collection of comments on a cracked trial form.

FTD

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