Guilty Pleasures?

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.

fortune-teller clipartlord.com

(Cartoon by the marvellous Clipart: see more of their ace stuff at http://www.clipart.com here.)

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…”

WTAF?

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.

fighting-11683

 

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.

 

Advertisements

6 thoughts on “Guilty Pleasures?

  1. Reblogged this on Do Right, Fear No One and commented:
    Why is i that it is always left to the voice of the junior “coalface” Bar to tell it like it really is?

    This is a courageous and bitingly accurate critique of a speech that those of us who practise daily in the Criminal Courts will characterise as “wildly inaccurate,” because we are not prone to using appropriate profanities on social media, are we?

    I sincerely hope the inaccuracies stem from misinformation provided to the SPJ by those with a desire to impress, be it HMCTS, or by some of whichever judges have been tasked to “pilot” BCM. (For “Pilot” read “Railroad, obvs.”

    Defendants do not give in with a shrug, very often it is a result of a bullying judge who insists that a plea be taken at PTPH, no matter how slim the bundle of material given to the defence may be. (And I shall probably find myself in contempt of court if any more of them utter that hackneyed inanity, “your client knows what he’s done.”). There have been more than several examples of such judges putting such cases back to the end of the list, sometimes until 7pm or later, so that counsel can “take further instructions” or “give proper advice,” on a plea of guilty. In one case recently, a defendant pleaded guilty in the Mags Court to a Class A drug importation offence, when it turned out he had a perfectly good defence.

    I personally have seen examples of such bullying. I suspect the SPJ has not.

    And what of the MG5, or Case Summary, on which such instructions are ordered to be taken, and plea advice given? One example in particular springs to mind of a recent case where the OIC had summarised the interview as containing full admissions. Errrr, no. In fact it was a No Comment interview. Not surprisingly, the judge exerted heavy pressure on Defence Counsel to extract a plea.

    The iniquity of this is obvious. There are very many entirely honest and professional police officers in this world, but there are one or two who might just take advantage of this situation if it becomes commonly known that such pressure is to be exerted on the basis of the content of an MG5 which the defence have no opportunity of checking without served evidence.

    The SPJ thinks that the coining of the phrase “Pressure to Plead Hearing” is a jolly wheeze. No it isn’t. It is a bitterly ironic warning of just what exactly is going on because it is a very accurate description of what can and does happen.

    So I take my wig off To @CrimBarrister, and will happily act as second when the dooks go up.

    That is of course unless our representative bodies get in there first, as they should be doing, and telling the SPJ to his face just exactly how life is in the real, and not the parallel, universe.

    To help them do that, you can get off your own bottoms and send your own examples direct to the CBA for starters. Don’t wait for someone else to do it, because you’ll only have yourself to blame if nobody succeeds in removing the scales from the SPJ’s eyes.

  2. As someone who has been found to be in contempt of the Crown Court (before the CACD grudgingly quashed the ‘conviction’) for declining, at 10.00am, to return at 2.15pm after having ‘had a proper conference’, I can only identify with the sentiments here expressed. As a result of that experience, I now routinely decline to answer the question “Has your client been advised about the credit for a guilty plea?”, explaining that the advice I give my client, and the instructions he gives me, are privileged. This often provokes the response “But it’s on the form, Mr West!”. I leave you to guess as to what my response is to that cri de coeur. In my experience – and I prosecute as often as I defend – defendants will plead IF they want to, WHEN they want to, and not before. The sooner some judges realise (or remember) that, the better.

  3. I’ve started to say that my client may be making an application to dismiss after the dreadful case where fortunately I had advised that this should be done. The case summary said that the client was linked to a couple of commercial burglaries by tool marks. That was the streamlined report. When I got the deps this evidence was missing. With that taken away there wasn’t a case against him. So, off we go for an application to dismiss. To cut a long story short, when the actually got a statement not only was he not linked to the offences, the statement supported the defence case. I won’t plead anyone now unless I’ve seen the evidence.

    • Quite. I actually believe it’s negligent to be pleading a client off without having seen all the evidence and unused material that’s been generated by that stage. The Court of Appeal were very scathing about this in the case of Lawrence in 2013, when such a practice went tits up and a Defendant went to prison unnecessarily. I won’t put either my clients or myself in that position.

    • I am currently involved in a case where the supposedly crucial SFR has not only not been served on the defence, but prosecuting counsel has not been given it either. Nor do either have the supposed admission from the defendant that a particularly damning item belonged to him. BUT HE KNOWS WHAT HE’S DONE!

Leave a Reply

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

WordPress.com Logo

You are commenting using your WordPress.com 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 )

Google+ photo

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

Connecting to %s