When I said I had returned refreshed from the Two Fingers To 50 Tour (see previous blogs), one thing I hadn’t expected was to develop psychic powers while I was away.
Because, as I exposed and predicted in February’s Does Your Client Plead Guilty, Very Guilty Or Extremely Guilty?, the new Better Case Management (and Digital Case System) which is sending criminal justice into meltdown has been specifically engineered to ensure that more accused people are ‘encouraged’ to plead guilty.
Now, those of us working at the system’s coalface had long suspected this. Not for nothing did we joke that the new PTPH was called a Pressure To Plead Hearing. We were told we were just being paranoid. But the truth has now been exposed in a speech given by the Senior Presiding Judge, Lord Justice Fulford, at the National Criminal Justice Performance conference. The speech was published only one day after my latest rant (see previous blog, Computer Says Nooooooo!).
Those of you working in the system may want to sit down and have a stiff drink before reading the full text of that speech here. I’ve been teetotal for 20 years, but even I was tempted to reach for the Jack Daniel’s when the full horror became apparent. And then I became angry.
By para 2, Fulford LJ is cheerfully proclaiming to his audience (who seem to be senior police officers or similar) that “a system which would have been wholly recognisable to the Georgians in the late 18th century is being transformed so that it is fit for the digital age, an age in which much of what we do will be determined by algorithms and delivered by robots. I may yet live to see Robocop and his counterpart on a virtual bench: Algojudge”.
Now, when I wrote that we’d soon be told that Defendants would have to appear as holograms, algorithms would replace juries, and judges would pass sentences from home in their pyjamas, I was joking. JOKING. I hadn’t seen the Fulford speech when I wrote that piece. But clearly, I’m psychic. Or at the very least, I should be getting paid a shocking amount of money to provide consultancy ideas to the MOJ and call it blue sky thinking.
And it might come as news to practitioners at the coalface, who weren’t consulted in any way about the impending juggernaut of doom whose course was to be set straight for us in the summer of last year, but apparently the new digital Better Case Management system is working like a dream! Tell that to all the practitioners at the courts which still haven’t got wifi, or even any mobile phone reception. Tell that to the practitioners who have found their working day decimated by the new PTPH hearings taking ABOUT FIVE TIMES AS LONG as regular equivalent hearings on paper.
I did actually wonder if the SPJ had been reading my blog, when in his speech he referred jokingly to these hearings being known as Pressure To Plead Hearings. He must have got the joke, I thought. But the joke was on me when I reached para 9, where he busily trilled about what a success the pilot PTPH scheme was. It was the reason for this “success” which had me choking on my tea, though: “Given the extensive communication between the CPS, the defence and the police in advance of the PTPHs, the hearings were nearly always effective, and they produced a significantly larger number of guilty pleas than we had ever dared hope or expect…”
I wonder, is it really right for the Senior Presiding Judge to be apparently publicly celebrating the idea that an administrative scheme would produce a significant increase in guilty pleas? Why should that concern any judge, who is supposedly independent of the executive and the other agencies with a vested interest in getting more guilty pleas, such as the CPS or the police? Shouldn’t the senior judiciary be hoping instead that any new administrative scheme would be assisting with the upholding of and the transparency of the rule of law and solidifying the confidence of all interested parties that justice was being properly and fairly administered?
He gives it away when he imagines, in para 10, the level of evidence the CPS expect to serve before a PTPH and then a Defendant deciding to plead guilty: “When, for instance, a damning streamlined forensic report or key video clip has been served, the result frequently has been a metaphorical rueful shrug by the Defendant who has accepted the game is up, and after a quick exchange with his brief, he has pleaded guilty on the spot, with all the obvious benefits to everyone involved…”
Why shouldn’t the CPS be obliged to serve their whole case, the evidence upon which it was decided that the accused person should be charged, in order for the Defence to be able to properly advise on plea? What’s so difficult about that? Instead, the CPS are allowed to get away with serving merely statements or exhibits “identified by the prosecution as being of importance for the purpose of initial plea and case management”. Note the lack of the word ‘evidence’ at this part of the PTPH form. What you often end up with in reality is simply a case summary written by the police (how many times can I say this: IT’S NOT EVIDENCE) and an indictment. When you consider that a person was still meant to be innocent until proven guilty the last time I checked, it doesn’t really square.
And I don’t know when the SPJ last defended in a criminal case, but my clients certainly don’t treat entering a plea one way or the other as an exercise in “whether the game is up”. Neither do they simply have a “quick exchange” with me as “their brief”. Proper advice needs to be given in every case, however straightforward the allegation(s) might seem to be. Most of my clients are facing years, in double figures, in prison if they are convicted or plead guilty. I’ve seen none of them giving a “rueful shrug”, metaphorical or otherwise, as I advised them about the state of the evidence in order to confirm what their plea would be. I have an obligation to discharge my professional duty in giving advice. I can’t do that if I haven’t actually seen the evidence or the unused material. That would be negligent.
I felt relieved when I read para 13, where the SPJ did say that, while judges were expected to manage PTPHs with “vigour and enthusiasm” (which may well be an understatement, and probably lacks the word “microscopically”), they must guard against “undue pressure” and must not become “overbearing”. Oh yeah? Am I the only barrister who’s noticed an outbreak of “your client knows if he’s guilty” from the benches when I either suggest that the CPS might actually like to serve some evidence before a plea is entered, or my client has the temerity to plead not guilty?
But fear not – there is no end to the good news. For who would have thought it, but the Digital Case System is also a resounding success!
I don’t know which courts the SPJ has been visiting or talking to, to come to that conclusion. Maybe people have just been telling him what he so obviously wants to hear, such is his enthusiasm for the clunky new operating system that’s been foisted upon us, not to mention the positively Luddite CJSM email system via which we all have to try to operate it.
Still, all those self-employed criminal practitioners who have had their fees cut by 30% or so over the last five years and have had to pay for their own training and tech equipment for this dog’s breakfast will be pleased to hear that the judges are “receiving new touch screen laptops and a classic assessment has been ‘the standard of equipment is excellent and is easy to use’.” Spiffing! And we are still arriving in robing rooms where there are notices up prohibiting us from plugging in our mobile phones or laptops to charge them unless they’ve been PAT tested first (no doubt also at our own considerable expense)!
By para 25 (if you can bear to get that far), we come to the crunch: this is all about the key measures to the ‘success rate’ of the BCM: the early guilty plea rate, the effective trial rate, the average number of hearings per case for guilty pleas, and for not guilty pleas. You will note the lack of any reference to justice being seen to be done, rather than being bludgeoned to death by management speak.
If any criminal practitioner wants to look into their future, read this speech and weep.
It probably wouldn’t do my career any good if I were to offer Fulford LJ outside. (Though I expect there are plenty of people out there who would pay good money to watch me and the SPJ duking it out in our robes in Chancery Lane.) So I won’t.
Instead, I challenge him to come to court with me every day for a week, or with any of my colleagues. Not just to get the views of people employed by the MOJ or HMCTS or the CPS or anyone else who has a vested interest in saying that BCM and the DCS are the dog’s bollocks and will solve all the world’s ills.
Come right down to the coalface and see the pressures us bewigged barrister serfs are really under. Then tell me that it’s all going swimmingly.
I’d finally wrestled control of my apoplexy outbreaks whilst enjoying the Two Fingers To 50 Tour (see previous blogs). I felt chilled. I was easing myself back into work. Surely nothing could now screw up my new found equilibrium and good humour.
But come on, this is the criminal justice system we’re talking about: the poor relation part of the welfare state which the current Government appear to be hell-bent on dismantling, with seemingly no one doing anything to stop them.
It’s a cunning plan. Using their most incompetent department, the Ministry of Justice, the Government have set about starving it of any funds which might actually enable the system to work properly for ordinary members of the public who might, you know, need to access or deal with being dragged into the maelstrom of the justice system. But at the same time as imposing those prison camp conditions on the department – buoyed by the knowledge that a disinterested media either (i) won’t notice or (ii) will just print stories about ‘fat cat lawyers’ if they do – the Government and its civil servants have also decided to try to digitise the system in one fell swoop, knowing full well that their lack of investment in the self-same system will grind the whole juggernaut to a halt within days.
Actually, I’m not sure even They expected the wheels to fall off that quickly.
My post-holiday relaxation came to a grinding halt within hours of going back to work, when a memo was sent round by the MOJ about the functioning – or perhaps that should be ‘non functioning’ – of their secure CJSM email system. Now bearing in mind that the MOJ have been blithely promising that we’ll all be in the digital dream age within weeks, you’d have thought that someone might have checked whether the secure email system on which every lawyer and other participant has to be registered in order to communicate, receive papers, etc, could handle the inevitable increase in traffic. But no, of course not – this is the MOJ!
Instead we all received an email overnight which read:
“The Ministry of Justice would like to apologise to CJSM users accessing the service through the CJSM website for the current poor performance of the service, There has been a growth in usage of the service over the pas few months beyond what was expected and over the last couple of months demand has outstripped the capacity of the service.
Please be assured that we are taking steps to remedy the situation. We have plans to provide:
1) a short term solution to increase capacity – this should be in place within the next 2 months
2) a medium term plan to significantly increase capacity
3) a longer term solution to replace the existing service with a completely new service – this is expected to be in place within 18 months.
In the meantime we would encourage you to use the POP3 version of the service which will allow you to receive your CJSM email into your normal email client e.g. Outlook, Thunderbird, MacMail, etc. Instructions on how to do this can be obtained from the CJSM Helpdesk on 0870 0108535 or by email at email@example.com.
Apologies again for the poor service you have been receiving and thank you for your understanding.
The MOJ CJSM team”
Not that we hadn’t already noticed that THE SYSTEM TAKES AN HOUR TO UPLOAD A ONE-PAGE DOCUMENT AND APPEARS TO HAVE BEEN DESIGNED BY THE FLINTSTONES!
Of course, one might have thought/hoped that the MOJ would have put in place extra capacity in the system before running headlong into the new digital system. But that would require a degree of foresight, planning and funding which is entirely absent from this department of Government at all levels. Not to mention that having a CJSM account is meant to be an entirely secure way of transferring confidential documents safely. So doesn’t telling you to punt it through your Hotmail account instead rather defeat the object?
And how the “CJSM Helpdesk” can justify making hapless users call a premium rate phone number for assistance is frankly beyond a joke.
The CJSM is barely up and running again now, and we’re all just waiting for another inevitable crash.
In the meantime, still full of post-Tour bonhomie, I ventured out to a Crown Court in the Las Vegas of the South East, where I was due to conduct a PTPH. Electronically, doncha know? Beware the Ides of March!
Now, regular readers of this blog will recall a previous rant about these hearings (see “Does Your Client Plead Guilty, Very Guilty Or Extremely Guilty?”), but before you even get to that stage you need to grapple with the vagaries of the Digital Case Management System. Perhaps more accurately described as the Downright Crappy Management System.
This is the central hub in the ether to which all the case papers and forms are meant to be uploaded. To which all professional parties to the particular case are meant to have access (along with the court), to be able to read documents, make notes on forms, all that jazz. So far, so straightforward, you might think. And you would be completely and utterly mistaken.
This being the MOJ and the court service, the system has seemingly been designed by persons who have never actually had to conduct a court hearing, or a criminal case, themselves. If any judges who actually used to be criminal practitioners have had a hand in the design and workings of this maze of impenetrable useless jargon, they should be ashamed of themselves. It would have helped if practitioners at the coalface had been asked for their input in designing such a system. But of course, no one would be thinking about us bewigged serfs who actually have to work with the feckin’ thing…
The timetable is meant to ensure that before the actual day of the hearing, the CPS and Defence have completed a form on which both have entered details of what their case is (though in the case of the CPS, despite the burden of proof being on them, that doesn’t seem to stretch to them being obliged to actually disclose the evidence on which their case is based), thus to enable the Defendant to enter a plea at the PTPH and, if required, the judge to set a trial date and make sensible directions in the hope that the parties won’t actually have to keep schlepping back and forth to court in the interim.
If only it actually worked that way.
I sat through several PTPHs before mine was finally ready to be called. I had, finally, managed to access the PTPH form myself. Though not the indictment, which is only one of the most important documents at a PTPH hearing, obviously. I could see it, but I couldn’t tweak it, which was not very handy considering I was prosecuting.
This time, the CPS had actually managed to provide me with access to the system and had filled in their parts of the form too. Sadly, the two Defence counsel had not managed to do the same. One of them had been unable to access or operate the system, and the other had not even been ‘invited’ onto the system by their instructing solicitors – yes, the system operates like some sort of perverse Tinder dating service where a cyber ‘come hither’ is issued to the lucky parties. A hearing which used to take 10-15 minutes when conducted with a paper form stretched to 40 minutes in the new digital revolution.
And the problems weren’t limited to the case I was in. Every other PTPH was beset with catastrophe. Almost no advocate had got to grips with the system, which is hardly surprising because we’ve had no formal training offered other than a few desultory courses outside court hours (unpaid) when plainly we might have other things to do. (I’m betting that MOJ and court staff and judges have had courses paid for, within office hours – and probably their computer equipment paid for as well, where we’ve of course all had to fund our own.)
The system itself is also exceptionally clunky to operate. Instead of being able to simply open a document and do something with it or to it, the system features multiple requirements to upload, download, unload, offload, re-load, pre-load and backload in your caseload, before you get to the motherlode. Time wasted? A shitload.
So what was meant to be three short hearings taking between 10am to 10.30am lasted pretty much all morning and into the afternoon as well. Good thinking, MOJ!
In next week’s gripping instalment: the MOJ decides that all criminal trials will operate remotely, with Defendants appearing as holograms, juries replaced by algorithms, and judges passing sentence from home in their pyjamas. All court buildings will be sold off and court rooms moved to prefabricated warehouse premises on out of town industrial estates. This is the criminal justice system in all its majesty, as imagined by the MOJ.*
It’s all going swimmingly!
(*Christ on a bike, I shouldn’t actually be giving them ideas…)
It was the second week of my visit before I worked out exactly why it was that I felt so at home at the Mediterranean Inn on Queen Anne North. It was because the lobby area bore a close resemblance to the set of Duty Free.
I was also now pretty adept with those buses, shuttling up and down between Commie K’s Hillbillyland palace, the vintage shop in Fremont, Downtown and the hotel. The hotel was the easy bit, as I always knew that when I was in sight of Dick’s (above) I was in the right place. (Ahem.)
(Clockwise from top left: the Hillbillyland house, the customary Ford Econoline in the garden, and 360 degree views from the roof terrace atop the Mediterranean Inn.)
The bus routes threw up some interesting possibilities. I never did get to drop in at Goofys, the salubrious looking local sports bar up near the Hillbillyland house. And I could never quite work out what a ‘free massage with your dry cleaning’ was really offering at the rundown shop on 15th Avenue.
But for a straight edge girl like myself, Seattle does have a couple of disadvantages (though I don’t expect many of my friends would see it that way).
For one thing, just about every other building in this city is a bar. Or at the very least, a restaurant serving booze with every meal. And they love to try to press you to have a drink with whatever meal you’re eating, even breakfast. Also, cannabis has been legalised here, so every so often you’ll be walking down the street and get an unwelcome whiff of weed. I even caught a waft of it when I wandered down to the Westlake shopping centre at 5th Avenue and popped into Macy’s.
(Top row: Seattle’s funky monorail, Seattle police with their big toys, the Space Needle; middle and bottom rows: the Space Needle park and views from the top.)
Mind you, I had just then emerged into a full road-blocking anti-police demo which had snarled up the whole of the city centre. There were plenty of police around then, obviously, but they were more interested in posing with their extremely cool motorbikes as they blocked off the road. (I do find men in uniform so obliging when I want to take their photograph…)
Commie K was watching this on the news, and was immediately gripped by the fear that I’d get myself arrested. Can’t think why, but it was all very sedate and no one stopped me filming the proceedings. After which I took refuge in the Dr Martens shop and chatted to the assistant in there about our respective justice systems.
I thought I ought to placate Commie K by doing something more sedate. I can recommend a trip up the Space Needle (above), which has some amazing views over the city and beyond. And I was pathetically excited by the monorail, which runs from the Space Needle into the shopping centre at Westlake, and riding it above the city centre road was still like being in an episode of The Jetsons even though it’s over 50 years old.
But for anyone of my age, the must-see was the EMP Museum, which houses the Nirvana/local music scene display. This has some incredible exhibits, including the Sounds shirt which my mate Keith C gave to Kurt Cobain in the very early 1990s and which he is seen wearing in many famous images from that time. There were also pictures and other memorabilia from so many magazines, and events and tours that I was at. I felt young, and at the same time old, and had a lump in my throat when I came out.
(Top left: outside the EMP Museum, with various of the displays including my mate Keith C’s infamous Sounds shirt.)
This took me right back to the day that Kurt Cobain’s body was found, which I still remember with extreme clarity. It was the end of the week and we’d just put the magazine to press, except for the news pages which always waited till the Monday morning. So unsurprisingly, we were all in the pub when our production editor Lord Grunge (whose real name was Jon Moore, but he had long hair, a goatee beard and was posh, so his nickname was inevitable) came pelting in from the office and told us he’d just seen on Ceefax that a body had been found at the Cobain house.
This was before t’internet and mobile phones, obviously, so we had to race back to K! Towers to try to verify the story any way we could. And spend the night re-doing pretty much the whole magazine. I spent most of the next few hours continuously on the landline to Commie K and P, who were relaying stories from the local Seattle TV news stations as they appeared, which I then relayed to The Gumby and the other journos who were pulling the night shift. None of us could quite believe what was going on, and we were only coping with prodigious amounts of booze and fags. Sometime around midnight, Kurt’s UK press officer Anton B pitched up at the office, where we sheltered him for the rest of the night as he took refuge from the fevered attentions of the tabloid press, who were obviously chasing him all over town.
We did finally get the revamped magazine done, though I still don’t know how. And I thought of that day as I emerged from the EMP Museum.
Still, despite Commie K’s worst fears, I had not even once been accosted by any local lunatics, or shot. And so it was that I found myself being ferried to Sea-Tac in P’s ancient station wagon, ready to board a flight down to LA. Whereupon I discovered that I was exceeding my baggage allowance (I knew I shouldn’t have had all those chips) and had to spend 20 minutes unloading all my dirty laundry into my hand luggage.
I hoped I wasn’t going to be too fat for LaLaLand. They probably don’t even have people who are 50 down there.