Forewarned is forearmed

I wondered exactly how long it would be before I felt compelled to rant about one of the user-unfriendly ways in which the criminal justice system operates. It’s not like there aren’t plenty to choose from.

Yup, 2016 has had a plethora of potential choices thus far, and it’s not even a month old: there’s the revelation that the number of A-G references for allegedly unduly lenient sentences has positively exploded in recent times (probably thanks to the rabid Daily Fail contingent); the continuing car crash of the litigation between the MOJ and practically all the criminal solicitors in England and Wales; and the unedifying spectacle of the CPS’s frankly laughable attempts to persuade itself that it could actually continue proceedings against someone who was, well, rather dead.

(Actually, that last I’d really rather like to have seen. mr dead

I imagine it a bit like an episode of the Harry Enfield sketch where Paul Whitehouse plays Mr Dead, the rotting corpse who goes fishing or finds himself attending family events, all while stiff in his coffin.)

But a chance remark from a former colleague I bumped into at court yesterday had me reaching for the smelling salts. Exchanging war stories about recent cases, he mentioned off hand that he’d recently been dealing with an attempted murder case, which had been listed for trial. Only trouble was, the trial had been listed in a warned list.

I posted a few tweets about this yesterday, and my timeline exploded with other lawyers detailing their own miserable experiences about being held hostage by the whims of court list officers nationwide.

The tyranny of the warned list is a phenomenon known and loathed by all criminal barristers. If you were trying to make up a useless operating system for some sort of TV comedy drama, you still wouldn’t be able to come up with the warned list.

In the Crown Court, lower end trials are routinely shoved into the warned list, a device designed to cause maximum inconvenience to just about every court user apart from court list officers. So, you’re facing a trial – either as a defendant or perhaps as a witness, even the alleged victim. It’s going to take over your mind for the months while you wait (possibly for over a year, if you’re unlucky enough to be due for trial at, say, Snaresbrook).

If you’re the defendant, you’ll be spending time meeting your legal team, and if you’re lucky that will include having a conference or two with the barrister who’s been instructed to conduct your trial. (Even though we actually don’t get paid any fee for attending a conference, but that’s Another Story.) If you’re the complainant or a witness, you’ll probably be stressing about going into the witness box and whether you’ll be able to remember the events after all this time and stand up to cross-examination… Hey, but at least you’ve got a firm date to work towards, right?

Er, not usually. It’s a warned list case, you see.

For the uninitiated, that means your trial doesn’t have a fixed start date. If you’ve been given a date, it will just be the first date on which the trial might be listed to start. If you’re lucky. If you’re on bail and/or your case is expected to last less than a week, your trial almost certainly won’t start on the date you’ve been given. Instead, it could start on any day of the week of your given date, and you won’t know which day until, say, about 4pm the previous day. Which doesn’t give you an awful lot of time to make plans if you have a job, or child care arrangements, or transport issues, or any of the other things that normal people (but not list officers, apparently) have to juggle in their everyday lives.

Or, worse still, you might book the week (or fortnight, or three weeks – there seems to be no rhyme or reason to why the warned list at one court should be a different length to the one at the court down the road) off work in order to make yourself available, only to find your case doesn’t get called on in the list at all, and has to be re-listed months down the line. Possibly still with no fixed start date. No wonder that the BBC were reporting yesterday that thousands of trials had to be abandoned last year because witnesses didn’t turn up (see the article here).

You have to wonder how many of those examples were because witnesses had been messed about so much by the listing system that they simply couldn’t be arsed.

But if complainants/witnesses/defendants do actually all manage to show up at the right place at the right time, what about the lawyers?

Well, we are obliged to turn up. Or at least, someone is obliged to turn up. Whether this will actually be the person who was initially briefed, has done the conference(s), prepared the case, possibly spending numerous hours on paperwork (all of which will be unpaid as it’s ‘included’ in the brief fee, which only becomes due when you start the trial), well, that’s a lottery. You see, contrary to the expectations of courts, judges, clients and solicitors, barristers can’t afford to keep themselves free for a particular warned list case by taking on no other trials for the whole duration of a warned list. We can’t afford to be out of court for what could be three weeks waiting on the off chance that your warned list trial may or may not be called on. Earning nothing from that case while we wait for it.

(Of course, knowing you’re unlikely to be conducting a particular trial due to there not being a cat in hell’s chance of it being called on when you’re available isn’t conducive to encouraging you to pull out all the stops in preparing the case either, if you won’t ever get paid for doing so. But that’s Another Story.)

If I don’t work, I don’t eat. It’s as simple as that. So if I get offered another trial which HAS come into its warned list, which may or may not clash with your warned list case, depending on the whims of different list officers at different courts, I’m going to take it. And so if you find that your trial is called on, on the second Wednesday of the warned list fortnight, and a barrister you’ve never clapped eyes on before turns up and says they’ve had to take over the case at 6pm last night because the original barrister is still engaged in another trial at another court, now you know why.

And thinking back to that attempted murder put into the warned list for my colleague at a certain court centre not far from London, you may think that there could not possibly be a more unsuitable case to left to the vagaries of the warned list system. Emotions will be running high, certainly for the alleged victim who – by virtue of the charge – possibly almost died and was almost certainly seriously injured. There’s potentially expert evidence. The stakes for the defendant are huge. The charge itself is not uncomplicated.

So when I think of that attempted murder case casually dumped into that nebulous how-long-is-a-piece-of-string space time continuum by a court probably intent on ticking a couple of boxes for the MOJ rather than considering what was right for all the parties involved, I start getting, well, a bit ranty.

Which means it’s time to summon up the Ranting Genie. henry_rollins_007

He looks how we all feel when one of our cases gets put into a warned list.

(If you want to hear Henry get properly ranty, there’s a link here.)



One thought on “Forewarned is forearmed

  1. I find myself constantly apologising to defendants who have never met me till an hour before their trial, and to defendants who I have been instructed to represent that I might not be available for their trial. And if you think two or three week lists are bad, have you encountered the rolling warned list at Cambridge. You can bob along for a year before the case is called in for trial. Any hope of continuity of counsel becomes a joke.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s