Crystal Balls!

Realising that I apparently now had psychic powers when it came to the criminal justice system (see my last blog, Guilty Pleasures?) took some getting used to. But happily it seems that I am not alone.

You will no doubt be pleased and relieved to hear that the future of the CJS is in the safe hands of the trio of Richard Heaton, Alison Saunders and Natalie Ceeney. They are, respectively, the Permanent Secretary of the MOJ (reported salary: between £175,000 and £179,999 – source here), the Director of Public Prosecutions (reported salary: £205,000 – source The Telegraph here), and the Chief Executive of HM Courts and Tribunals Service (reported salary: between £180,000 and £184,999 – source here).

So, with a combined annual income of getting on for three quarters of a million pounds, should us hardworking taxpayers have a hope that between them they might actually have some insight about the current parlous state of the criminal justice system – teetering as it is at present on the very brink of collapse – and be able to look into their crystal balls and give us a glimpse into a brighter future for it?

Well, the threesome appeared on Parliament TV last week to, among other things, give the Public Accounts Committee a view from the fo’csle of the predicted shape of the criminal justice system in 2020. And what revelations they had! For they have seen the future, and yes – the future is digital!


If you have a spare couple of hours – say, you’re waiting for that PTPH which was listed in front of yours to finally grind to its conclusion – you could do worse than to view the link to the PAC session of 17th March on Parliament TV here. It really is most instructive.

The topic was Efficiency In The Criminal Justice System, and once I had stopped choking on my fizzy water I thought, surely this can’t be as bad as I’m thinking it will be? Surely it can’t be that much of a car crash?

The triumvirate looked a little nervous from the start, especially once Stephen Phillips QC MP (Con: Sleaford and North Hykeham) kicked proceedings off by declaring that he was a Recorder of the Crown Court. So, someone who might (i) actually have a clue about what’s really going down at the coalface and (ii) actually give a shit about the current catastrophic state of the CJS. You could practically see the three of them gulping as Phillips smiled in the way that Shere Khan first looked at Mowgli. Like he’d just seen dinner.

So what did we learn? That the proposal to devolve criminal justice powers to places like Lincolnshire and Manchester doesn’t appear to have been thought through, Heaton telling us that the MOJ’s attitude to it is “pragmatic” and “agnostic”, which appeared to me to translate as “we might let the Northern plebs just get on with it and hand the keys over to them if it’s not going to cost us any money”.

Phillips QC was soon curling his lip and asking if this wasn’t going to lead to differing standards of justice in proximate geographical locations. He looked as if he didn’t like the idea, in the same way you don’t like stepping in dog muck.

And did Heaton just say that the MOJ planned to improve efficiency through its contracting? Hahahahahahahahahahahahahaha…

We also learned, perhaps unsurprisingly, that David Mowat (Con: Warrington South) comes across as a bit of a berk. After a lot of waffle about devolved justice, which demonstrated his apparent lack of grasp of the issue, he later let loose the real bee in his bonnet – which was why did the MOJ “cave in” to “vested interests” by pulling the two tier contracts. He compares the situation to how we’ve now got fewer corner shops and more large Sainsburys, and isn’t that all dandy? Hopefully Mowat never needs a lawyer then. Wasn’t this all about a victory for vested interests, he demanded. I wonder whether David recently voted to give MPs a whopping pay rise? Was that a victory for “vested interests” then, David? Was it?

Then Kevin Foster (Con: Torbay) wades in with some figures about the trial effectiveness rate. You can almost hear the collective intake of breath from the Triumvirate. When, he asked, could victims of crime going for a trial in Greater Manchester expect to receive the same quality of service in that department as those in North Wales?

Ceeney took the plunge on this one. “Well, that’s a very good question,” she began. She began all her answers to tricky questions with, “Well, that’s a very good question…” or sometimes “Well, that’s a very, very good question…” It’s a pity she couldn’t really give a comprehensible answer to any of these, mind. She addressed the PAC panel with all the gravitas of a primary school teacher lecturing a class of nursery toddlers about toilet training issues.

Foster doesn’t want to let go, after she’s finished waffling that comparing the difficult crimes of Manchester isn’t like for like to sleepy North Wales. Well, what about Manchester reaching the standards of, say, the West Midlands, Foster asks, not unreasonably? His cheeks are now quivering with repressed irritation. The answer is, apparently, that there is no single definition of success in criminal justice. That’s us told, then.

And yes, it was only a few sentences into her evidence that it’s confirmed that the rate of early guilty pleas is one of the ‘key efficiency indicators’ in the system. And getting these guilty pleas, apparently, is what the Better Case Management initiative is all about! See, it wasn’t just the Senior Presiding Judge giving the game away then. (See Guilty Pleasures? again.)

Alison Saunders talks, slightly smugly, about how the CPS are apparently ‘front loading’ evidence when they’re preparing cases which they think are going to be guilty pleas. This might well explain the paucity of evidence which I’ve witnessed in some of my own PTPHs then (since I never seem to get briefed in any cases where my client wants to plead guilty), though it doesn’t excuse it.

The topic turns to best practice and how to identify it. Ceeney explodes the first bomb here, as she blithely trills how “one of the best ways that we can improve efficiency is limiting what happens in the court room to just a trial and complex sentencing”.

Hold on, re-wind that one again. So there will be NO HEARINGS in a court room other than trials and ‘complex’ sentencing?! Everything else can simply be input into the digital system, apparently! What, so barristers will be representing our clients by Skype or hologram then, will we?

Press 0 if you want fries with that!

So what is meant to happen with, say, bail applications, or legal arguments about disclosure issues, or even the dreaded PTPHs? Such a clueless, useless idea surely can’t come to pass? Those of us at the coalface all know, of course, that in reality you never really get anything done on a case until Prosecution, Defence, judge and police are together in the same room, that being the court room. Cases would grind to a halt within weeks without proper hearings in court. And what about the public and media having access to this, and justice being seen to be done?

And apparently, this Utopia will be upon us within the next four years! Strewth.

Oooh, Stephen Phillips QC has reappeared, fresh from having asked a question in the House or something. And his rapier tongue is, well, immediately swishing.

He’s quizzing Ceeney about whether she could mandate a particular element of best practice across the entire country.

Ceeney: “Myself and the judges can. And if it’s successful, we will.”

Phillips QC: “You’ve just put your finger on it, haven’t you? You can’t mandate it, because actually the judiciary have to be on board as well.” His gaze is boring into her.

Ceeney blusters, telling him the judiciary are on board.

Phillips QC: “But the judiciary is independent. How are you going to make them do it if they don’t want it?”

Ceeney waffles about how the judges are all very keen and how she speaks to them on a daily basis.

Phillips QC narrows his gimlet eyes: “I’m sure you’re right, but I’m interested in an answer [to Ms Flint’s question]. And the answer is it relies on the goodwill of the judiciary…”

She’s skewered. Her lips purse. She gulps water while Heaton ruefully admits that, yes, there is a constitutional point here. Round 1 to Phillips QC.

And has anyone out there realised that apparently there is a Prosecutor App being deployed? I can’t wait to try that one, nor indeed the system where people are being encouraged to enter guilty pleas online. Presumably without thought as to whether they might want or need a legal representative with them when they do so.

Press # if you want McJustice dispensed!

And did Heaton just say that a “Crown Court performance tool” has been adopted, and not only that but on a “granular” level to boot? I think I’ve seen a few ‘performance tools’ in the Crown Court in my time, but I’m not quite sure that’s what he meant.

Kevin Foster jumps back in with a good question about court capacity. Those of us on the ground know the answer to this: HMCTS are just about to shut a large number of courts and don’t open enough court rooms at a time, as they don’t want to pay to staff them, so the backlog of trials has been growing like topsy over the last couple of years. Ceeney bounces in, confirming that the problem is judicial time. Straight into the trap.

Phillips QC has obviously been gagging to get into a spot of cross-examination, and he goes at it like a terrier down a rathole. He’s so intimidating when he asks about variances in the numbers of cracked trials in Norfolk and Suffolk that Heaton has to jump in, metaphorically flinging his jacket across the puddle that Ceeney is about to trot into. Phillips QC almost has them pinned by the throat.

Phillips QC: “Ms Ceeney, can you explain something about the difference between Norfolk and Suffolk?”

Ceeney blunders in. “I can certainly tell you about Suffolk…”

Phillips QC is Not Happy with that. “Well, if you don’t know anything about Norfolk then you can’t explain the difference!” Crumbs, imagine doing a trial in front of him!

And he next gets the panel to agree with the proposition that a functioning criminal justice system is one of the hallmarks of a civilised society. I don’t know if they all noticed his slight but telling emphasis on the word ‘functioning’.

He’s met with some waffle about the Criminal Justice Board from Alison Saunders. (Do they actually have any hardworking taxpayer coalface practitioners on it, I wonder?) The threesome all take the opportunity to say how often they talk to each other and to other Great And Good and have very practical discussions, not least about things like how the CPS budget has been cut by just over 20% and staffing numbers by 30% over the last six years.

Apparently, the CPS are recruiting lawyers at the moment, says Saunders. One might well wonder, then, why the organisation has made so many lawyers redundant in the last few years, often with substantial severance payments. Phillips QC goes in for the kill.

If the CPS gets things wrong, that just shunts costs onto the MOJ and the courts system, doesn’t it? Phillips QC then launches into a withering assessment of the last time he’d sat on a trial as a Recorder: a five-day case stretched into a second week as Prosecution counsel had been instructed late, the main Prosecution witness didn’t turn up as he hadn’t been warned, two other Prosecution witnesses were conspicuous by their absence, etc etc. This is familiar territory to those of us at the coalface.

Saunders, to her credit, takes it on the chin as she tries to explain that witness care units, which are largely the responsibility of the police, are responsible for getting witnesses to court. Phillips QC looks unimpressed. He asks if the mess is down to the CPS complying with their required budget cuts and so lawyers are too overstretched to deal with cases properly, including briefing counsel too late to give them time to prepare for trial.

Now correct me if I’m wrong, but haven’t the powers that be – including a number of the Great And Good in Government – been telling us that a large part of our woes has been caused by there being too many people at the criminal Bar? Not according to Saunders, who chirps that, as the criminal Bar has been shrinking in recent years, the CPS often have difficulty in finding counsel! Eh?

But the fun is just beginning, as Phillips QC now has the bit between his teeth.

Phillips QC: “I know, because I make orders… that it is rare for those orders to be complied with within the timescale the court sets”, at least in London. “Now why is that, Ms Saunders?”

Saunders:  “Well, we’ve been recording that…” Oh goody! “And we now have a system in order to make sure that we record when court orders are complied with or when they’re not.”

Phillips QC now practically has steam coming out of his ears. He raises his voice. “WHY DID YOU NOT HAVE SUCH A SYSTEM BEFORE? IF A COURT MAKES AN ORDER IT’S SUPPOSED TO BE COMPLIED WITH!” You may well ask.

According to Saunders, this will all be cured by the Better Case Management system. Give me strength!

By now, I am losing the will to live, but for the performance of Phillips QC. He may be a Tory but I’m almost developing a crush on the bloke.

(Left: Stephen Phillips QC MP as he normally appears. Right: Stephen Phillips QC MP as he appears at the Public Accounts Committee.)

“It’s always jam tomorrow, Ms Saunders,” he drawls. “Why haven’t the Committee got some jam today?”

We still don’t get any real answers, though, and the ‘action’ moves to discussion of ‘sub groups of the Criminal Justice Board’ etc. Yawn. The avalanche of management speak can’t disguise that the CJS, starved of funds, practical resources and often led by donkeys, is in crisis. You’ll be glad to hear , though, that according to Heaton there’s a “genuine partnership mentality where we all want to make it better”.

You could start by telling the Treasury you actually need proper funding, then?

Phillips QC is back on the attack with Ceeney. He’s metaphorically looming over her when she attempts to illuminate us on how the Criminal Justice Board works. He interrupts.


And there are further sticky moments to come. It’s like a Punch and Judy show when Phillips QC tries to get an answer as to why sitting days for courts were reduced, resulting in massive delays in getting trials timetabled. Not unreasonably, he wants to know why any systems in place didn’t pick up the obvious increase in complicated sex cases and adjust accordingly?

Heaton doesn’t know, but hazards a guess that the MOJ’s forecasting might not have been as good as it should have been. No shit, Sherlock. Phillips QC demands to know why the problems weren’t picked up by the MOJ. Ceeney tries to interrupt to deflect some of the ire, but Phillips QC is having none of it. “Unfortunately the Permanent Secretary is responsible for the system, Ms Ceeney… THAT’S WHY I’M ASKING HIM THE QUESTION!”

Ceeney makes another error when she tries to suggest that HMCTS is now sitting the maximum number of days possible. Courts sitting idle? Oh no, guv.

Mistake. Phillips QC has come armed with a sheaf of emails, which he received from the MOJ in the last week, increasingly desperate in tone, begging for Recorders to fill sitting vacancies! This woman can’t stop battering herself, like a moth persistently trying to get under the lamp shade. “There’s a crisis, isn’t there, in the number of judges you’ve actually got available to sit and try cases?” Phillips QC roars.

By now, poor Ms Ceeney’s mouth is just flapping wordlessly. Watch at 11:23 on the link above. When Heaton tries to help out, it becomes buttock-clenchingly embarrassing. Phillips QC is loving it. It is exquisite.

“From the description that the Committee is getting,” he thunders, “it might form the view that we have a BARELY FUNCTIONING CRIMINAL JUSTICE SYSTEM!” Hallelujah!

And he’s not finished there. He gets to a letter from one of his constituents who has been called for jury service. She’s very willing to serve, except there’s no local public transport which could get her to the court for jury service. “What’s the answer?” he barks.

Heaton’s response is that he hopes the MOJ would “be able to offer advice” to someone presented with those difficulties in carrying out their civic duty.

Phillips QC drums his fingers together. “I don’t think she can travel on advice,” he snarls. “ADVICE DOESN’T HAVE WHEELS!”

Crikey, this is almost better than the telly.

Next time this CJS trio come down from their Whitehall towers and face the Committee, I’m very tempted to get down to the House of Commons to see it live. In the meantime, I wonder if Stephen Phillips QC MP is on Twitter?…



7 thoughts on “Crystal Balls!

  1. Reblogged this on Do Right, Fear No One and commented:
    “See no evil, hear no evil, and speak no evil…” about the CJS that is. Oh dear. CrimeBarrister nails it yet again. I had thought after the ignominious demise of “Dame” Ursula Brennan that this brand of civil service obfuscation night just be a thing of the past. How naively trusting I was.

  2. Horrifically, limiting Court access is already happening: failure of Duty Sol to apply for bail app because he didn’t think it was worth it; Bail hearings held in closed session.

    • Depending on the case, there may be circumstances where it would be the correct advice not to apply for bail if you are the duty solicitor. You may have insufficient information, either from the Crown’s case or from your own position, to make such application with any hope of it succeeding. Just because you are entitled to make an application does not mean that you should necessarily do so, depending on the particular circumstance. In addition there are circumstances where a defendant is not entitled to have a bail application made: e.g., if appearing in the magistrates’ court on a first appearance for an allegation of murder, as the magistrates’ court is not entitled to consider a bail application in such circumstances. Only the Crown Court has power to do so. If you are talking about bail applications in the Crown Court, it is not unusual for those to be held ‘in Chambers’ (i.e., in private) and this has been the case for many years.

    • I cannot comment or advise upon individual cases but in general a Defendant would not be produced to the Crown Court if the case was simply listed for a bail application. They would, generally speaking, be present if the application for bail was being heard alongside another type of hearing, such as a PCMH or preliminary hearing (or now, a PTPH) which would require the Defendant’s attendance.

  3. I understand. Thank you for your blogs – too much of the criminal justice system is I believe unnecessarily complicated for the layperson (me!) When public & legals meet at times of great stress many questions go unasked/unanswered for various reasons.Your blogs and the superb Justicegap are really useful. Thanks again.

  4. Pingback: Chattin’ S**t! | My Mid Life Crisis

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