“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat. “We’re all mad here.
I’m mad. You’re mad.”
Every day, it seems that our criminal justice system becomes more like the Mad Hatter’s Tea Party. A sort of Alice In Wonderland world where everyone in charge seems to have been at the hookah.
Fixed grins on their faces, the Powers That Be will parrot the mantra that everything’s fine and there’s nothing to worry about, while behind them everyone with their eyes open and an ounce of common sense can see the whole edifice collapsing around their ears.
I’ve now been blogging about this state of affairs for two years. I’m not going to apologise for doing it again. I might be a bit of a Cassandra (in fact, I was cast as her in a school play once, in which I managed to look both scary and winsome in an old bedsheet for a toga and a wild wig which was, well, not that much different from my real hair), but I’ve been telling you the truth all along. As have others. And I can tell you that it’s never been as bad as this.
The criminal justice system is in complete meltdown. There are no two ways about it.
Only last week, two separate national broadcasts about the issue of disclosure brought this meltdown firmly into the public domain. The common denominator of both was THE COMPLETE INABILITY OF THE BIGWIGS IN THE CPS OR THE POLICE TO UNDERSTAND, OR ACCEPT, THE SCALE OF THE PROBLEM. So to help them, I’m spelling it out. In capital letters.
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, “or you wouldn’t have come here.”
The first of these programmes was on File On 4 – the link is here – which focussed quite rightly on the problems with the disclosure regime in the magistrates’ court. This is where all criminal cases start, and where the vast majority which go to trial are heard. Anyone regularly reading my blogs will be aware of my very low opinion of what now goes on in the lower court, which seems to operate like the Wild West in that the proper rules of evidence and procedure have been sacrificed on the altar of expediency.
I only sporadically venture there these days. Every time I do so, I’m left reeling by what I see and hear. It’s all about a race to railroad cases through the system with unseemly haste. Woe betide if you have the temerity to question why, on this conveyor belt to disaster, you’re not being provided with the actual evidence on which the Crown propose to rely at trial, until you’ve reached the day of trial (and sometimes not even then). And you’re invariably given short shrift by the bench if you have the gall to mention a disclosure schedule.
One solicitor, collared outside Highbury Corner mags, described the pointlessness of even getting a court order for the CPS to serve or disclose materials, as this would be ignored. We all know this happens, and not just in magistrates’ court cases. A survey conducted for the programme gathered information about disclosure experiences from 1300 criminal practitioner members of the CBA, the CLSA and the LCCSA, and 97% of those responding said that they had encountered disclosure failings in the last 12 months.
The File On 4 programme showcases a litany of frankly horrifying cases. There’s the estate agent accused of common assault, in whose case the CPS marked as ‘clearly not disclosable’ the interviews of people arrested as suspects at the same time as him in relation to the same incident. Or the taxi driver at whose trial the unused material schedule produced was totally blank (for the uninitiated, this is impossible). Or the teacher in whose case the police failed to hand over CCTV footage on the basis that it didn’t show anything happening – which was exactly the point of why it undermined the Crown’s case!
“Why, sometimes I’ve believed as many as six impossible things
Perhaps the worst part of this was the attitude of both the police and the CPS when challenged about the survey findings and the obvious failings identified. Thames Valley Police apparently declined to discuss the estate agent’s case, and simply trotted out the “officers carried out a full investigation and followed all procedures…” mantra when asked to comment about the CCTV in the teacher’s case. We’ve all heard all that before, but it doesn’t make it any better when you find out that some case-clinching disclosure has been withheld from you until the day of trial.
As for the CPS, you won’t be surprised to hear that the unfortunate representative put up to represent them, Greg McGill (who rejoices in the title of Director of Legal Services), appeared only too keen to get on the defensive. Worryingly, his primary boast was: “A conviction rate in the magistrates’ court of almost 85%, and a plea in the first instance at 78%, is not indicative of a system in crisis. That isn’t to say there aren’t things we could do better.”
What is indicative of a system in crisis, however, is a senior CPS lawyer who thinks it’s appropriate to boast about an 85% conviction rate, or first instance pleas of 78%. And this is in the context of him saying he’s “passionate about justice”! McGill’s boast sadly reflects the increasing stance of the CPS, which appears not to be acting in the public interest, but prosecuting at all costs. What if those convictions were obtained by the withholding – either deliberately or carelessly – of disclosure which would or may have undermined the evidence relied on?
Greg also appears to have a shaky grasp on the assessment of evidence. As Mark George QC pointed out on Twitter about the teacher case referenced above (he is well worth a follow @Mark_George_QC): “When CPS Director of Legal Services justifies prosecution for sex offence cos ‘CCTV showed people together’ but it showed no offence had taken place, we are in serious trouble.” Quite.
“Would you tell me, please, which way I ought to go from here?”
“That depends a good deal on where you want to get to.”
“I don’t much care where –”
“Then it doesn’t matter which way you go.”
In the second programme, the venerable Law In Action presenter Joshua Rozenberg was grilling the DPP Alison Saunders and David Tucker of the National Police Chiefs Council about how they intend to approach the disclosure failings which have been highlighted by numerous recent cases. The link to this informative programme is here. Richard Foster, chairman of the Criminal Cases Review Commission, says he believes the problem, is a cultural one, particularly for the police, opining that the problems are more cockup than conspiracy (presumably he’s read my last blog Disclosure Doom: Cockup Or Conspiracy?, which you can see here.) And he ought to know, as apparently out of 636 cases referred to the Court of Appeal by the CCRC since its inception, 422 have resulted in the convictions being quashed and a large proportion of these related to disclosure issues.
Perhaps unsurprisingly, once tackled by Joshua, both Saunders and Tucker appeared to retreat to the cover of exercises in self-justification. But what was noticeable across both broadcasts was the total absence of any acknowledgement from those in charge of either the police or the CPS that resources are undoubtedly at the root of all these problems. Not enough police to adequately investigate all the telephone materials which seem to have been at the bottom of a number of the recent disclosure problems which collapsed several high profile trials. Not enough CPS lawyers with the requisite qualifications or experience to deal with disclosure problems on the scale facing the service.
Saunders appears at one point to veer towards suggesting that it’s the Defence’s responsibility to tell the police everything they want to know early doors, in order to avoid being in the situation where the police apparently can’t find the emails which exonerate them. The example of a man called Clive Steer was used in the programme: being investigated for bribery, the police seized his computer on arrest. In interview he told them about emails which would show he hadn’t bribed anyone, and after 18 months his lawyers had to twice get court orders to get access to said computer, at which point they found the emails after a three hour search, rather suggesting that the police hadn’t even bothered to look.
This stance overlooks the basic premise that, well, having been accused by the state Mr Steer was innocent until proven guilty by the state. We’re not operating in an inquisitorial system yet, though we all know there are a number of people holding office who’d rather like to get rid of our adversarial system and move to an inquisitorial one as they think it will be cheaper and will result in a higher conviction rate. (Both propositions are wrong.)
Tucker suggests that there are products out there to train officers about disclosure investigation, but it turns out that he’s talking about a “basic film” which has apparently been viewed by over 15,000 people. Fancy! One wonders who made the film and what training they have in disclosure issues. Aren’t we always being told that there are too many criminal lawyers out there? If there’s so much spare capacity, why not get some criminal barristers, who after all are the people who have training and expertise in trial disclosure issues, to offer that training to the police? Oh, would that be because they’d need to pay us to do that? Those pesky resources again, dammit!
“Who in the world am I? Ah, that’s the great puzzle…”
So that’s where we are right now. In these circumstances, you might expect to see our venerable Lord Chancellor… who is it this week again?… oh yes, David Gauke, going in with his big boots to try to sort out the mess with the additional funding which is plainly required.
Not a bit of it. The former Treasury wonk’s latest priorities according to some of his most recent Twitter proclamations are council by-elections in Northchurch and proclamations about a new 50p piece featuring Paddington Bear. I shit you not, it’s here.
Our current Lord Chancellor has simply been missing in action while the justice system is collapsing around his ears.
Still, at least his non-response (‘nonponse’?) is more dignified that what his hapless predecessor Liz Truss has been up to in this time of trouble for her old department.
How this woman has ever been appointed to any high office, Sid James only knows. It shows the contempt in which the whole concept of justice is held by the current administration, that this gurning airhead was ever allowed to get her sweaty paws on this ministerial brief, but there you are.
“Why is a raven like a writing desk?…”
Meanwhile, oop North the top legal blogger Gordon Exall – whose CivilLitTweet output is essential reading, especially for anyone involved in the civil justice system – attended a Mad Hatter’s Tea Party of another kind, in the form of a ‘roadshow’ held in Leeds about the current programme of ‘reforms’ which are continuing apace in the alternate reality of HMCTS.
He blogged about the event here. To describe it as surreal would be to describe Chris Grayling’s tenure in charge of the MOJ as slightly unfortunate. Portentously perhaps, the roadshow was held in court 13 at Leeds Magistrates’ Court, which seems to be one of the few in Yorkshire which hasn’t yet been closed by the MOJ. Someone’s got a sense of humour.
CLT then spent the evening having his ear bent by the ‘Transformation Director North’ (bet that title comes with a hefty pension), and to paraphrase what he learned: (i) the MOJ are paranoid that they don’t end up with an NHS computing system style debacle, (ii) David Brent style phrases like ‘stakeholder’, ‘legacy kit’, ‘future proofed’ and ‘enabling’ are very much de rigueur in Petty France, and (iii) the current technology doesn’t always work well. You don’t say.
With admirable understatement, CLT also reported that so far as flexible operating hours are concerned, “I cannot state that there was a groundswell of opinion in favour of this.” I did an actual lol about that one. And it was no surprise that, when asked about why this (preposterous and unworkable) scheme was being considered, the answer was “because Ministers had asked them to”. Yeah, I bet.
Oh, and at the same time as all this, the criminal Bar is having imposed upon it by the MOJ a new ‘reformed’ fee structure for Defence work, which is likely to see large swathes of the Bar worse off by up to 40% in some cases. And there’s only one thing to be said to that.
“Off with their heads!”
(Main pic is a GIF from the Disney classic Alice In Wonderland – please don’t sue me!)