Dropping A Clanger?

It must be my age. I am, after all, romping towards my dotage. Or maybe it’s that I have always been A Stroppy Cow, only too ready to start a fight with myself in a phone box, let alone with anyone else.

Is that why I work myself into a froth on a daily basis when I read story after story in the press which makes it all too obvious that the criminal justice system is, well, in a state of meltdown? This week is no different.

There was an important piece in the news this week, sandwiched between all the fluff about Cameron’s tax affairs and who fathered the Archbishop of Canterbury. Unless, like me, you’re borderline obsessive about the workings of justice, you might have missed it. But I’d venture to suggest it’s a significant announcement that bears closer scrutiny than most of the mainstream news outlets have afforded it so far.

The story was featured by the BBC, with the headline that the number of dropped Crown Court prosecutions had reached its highest level for five years: see the full story here. And as if by magic, on the very same day the Guardian and other news outlets were featuring the sorry saga of four young students who had been accused of rape, and against whom the case had been very publicly dropped just as their trial was about to start. The full story is here (with a further update here), and makes extremely concerning reading, as someone somewhere on the Prosecution side clearly dropped a major clanger.

drop a clanger

Those of us bewigged serfs working at the coalface can tell you all sorts of horror stories about cases we’ve been involved in where trials haven’t gone ahead as the result of a last minute volte face by the Crown. There are many different reasons for this. Often, it’s as simple as complainants or witnesses not turning up. In other cases, it’s something worse.

I don’t, of course, know anything more than has been widely reported about the Gloucester case. But if even half of the reporting is accurate, evidence which clearly had the potential to undermine the Crown’s case against the four accused men was, somehow, sat on by the police who dealt with the investigation. This seems to have included text messages from the complainant’s own mobile phone which appeared to suggest that she may have consented to a group sex encounter – when she was now suggesting that she had been raped – and details of ‘questionable’ evidence she had given as a witness in a separate case involving, yes, a group sex encounter.

On the face of things, such evidence would be prima facie disclosable to the Defence at an early stage of the case. Under the Criminal Procedure & Investigations Act 1996 s3, the Prosecutor must “disclose to the accused any Prosecution material which has not been previously disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused”. S3 is supposed to kick in at the same time that the main papers, on which the Prosecution actually base their case, are served – before any pleas are even entered. From the newspaper descriptions of the materials at the centre of the problems which arose in that case, if the materials which were at the centre of the ruckus in this case were remotely as described, then the Defence should have had them months ago.

What is perhaps most worrying about the reports, however, is the suggestion that neither the CPS nor Prosecution counsel had been told about the materials, let alone seen them. Whether this is cock-up or conspiracy remains to be seen: the trial judge has apparently demanded a full explanation as to how this came to happen.

We’ve all been there, of course, though not always in a case which has made front page headlines in the Daily Mail. This one made me think back to the time, a few years ago, when I was given a Prosecution brief in a robbery trial as an overnight return. As usual, one of the things I noticed when gutting the brief for the first time was that the unused material seemed sparse. For some reason, the CPS often don’t seem to think it’s important for trial counsel to be sent the unused material, but there you go.

Reading the papers, it struck me that if I’d been defending, I’d have been thinking that the case had the smell of ‘inside job’ all over it. I duly turned up to court the following day and met the chief Prosecution witness, whose evidence was to be that he’d locked up his business one night, then been bundled into a car by a masked man on the way home, taken back to the premises, made to unlock them and open the tills, which were then emptied. The smell was becoming stronger.

Nonetheless, this was my witness and we had a judge who was impatient to get on with the trial, no doubt so that the court’s stats for the MOJ didn’t look bad. However, I insisted on some time to go through the substantial amount of unused material on the CPS file (which had plainly not made its way to my brief). Almost straight away I discovered an earlier statement from the witness which described being able to partially see through the mask of the alleged robber, to the extent that he could tell he was a white man. The Defendant in the dock was visibly Asian.

Obviously I had to disclose this to the Defence immediately. I explained to the judge what had happened and asked for more time to ensure I had complied with my disclosure duties. The Crown’s case was based entirely on DNA evidence around the neck of an opened bottle found within the relevant premises. The witness had mentioned nothing about the intruder having a drink in either of his witness statements or in his evidence-in-chief, which had already been given.

Without going into too much detail, I eventually discovered other material which not only positively undermined the Crown’s case but named the individuals said to be involved. None of them was the Defendant.

The result: jury discharged, trial abandoned, case subsequently dropped. I like to think I averted a potential miscarriage of justice there, but it was a bit hairy at the time.


Now I’m not saying that sort of massive disclosure failure is behind every case which gets dropped when it comes to trial, though I’d be willing to bet there are more than there used to be. I’ve not yet met a police officer who actually understands the CPIA and the rules about disclosure, and that’s a problem when they have control over it. The CPS or counsel can only assess material if they’re actually made aware of it, after all.

And sometimes the explanation for a case getting dropped might be because witnesses or complainants simply don’t show up on the day of trial. I’ve lost count of the number of times that’s happened in cases I’ve dealt with. Sometimes it turns out to have been an ‘administrative error’ and the Witness Care Unit have failed to warn the witness of what day they need to attend court or where. Sometimes it appears that the complainant simply doesn’t fancy it or the witnesses can’t be arsed. Without knowing more about the details behind the figures in the BBC report, it’s impossible to properly assess why there’s been a five-fold increase in cases getting dropped.

On the day the news came out, Nasir Afzal, the ex-Chief Crown Prosecutor of the North, was interviewed on the Today programme: hopefully there is still a link to the broadcast here, with Afzal appearing from 08:20hrs.

The programme had featured a man who had been accused of an offence involving a child, with proceedings going on for 15-16 months before the case was eventually dropped after he produced what sounded like documentary evidence which undermined the credibility of the allegation. The suggestion was that, particularly in sex cases or allegations in any way involving children, once an allegation is made the police simply don’t investigate any other lines of enquiry and ignore information which may undermine the complainant.

Afzal tried to argue that the pendulum had not swung too far in favour of complainants and away from the accused. We do, after all, still in theory have a system in which you are innocent until proven guilty. I say ‘in theory’ because these days – as those of us who defend in sex cases know only too well, for example – in practice you have to be able to put a positive case to stand any chance of winning it. But Afzal did reiterate that the Prosecution (and that includes both CPS and police) must look at allegations in the cold light of day, and carefully consider issues of credibility.

From the view those of us at the coalface have, unfortunately all too often that objectivity and perspective simply doesn’t seem to be applied. And that’s where you get the position where potentially important evidence gets sat on or disregarded – because it doesn’t fit with the case. Or simply because no one gets told about it until it’s almost too late. Fortunately, in the Gloucester case, it came to light just in time.

Cock-up or conspiracy, it’s hard to know which when a case gets dropped just before trial. Either way, it’s a very poor show for justice.


You Ain’t Seen Nothin’ Yet!

This past week, I’ve realised that I’m old-fashioned. An anachronism. Archaic. Démodé. Retro.

You see, I believe that the criminal justice system should be fair and balanced, not weighted in favour of the State with all its resources, when someone is to be accused of an offence. If you are unfortunate enough to be accused of transgressing the laws of this country, you should be entitled to know what you are accused of, and by whom. You should have the right to representation and to be properly advised, by someone legally qualified, about the state of the evidence against you. You should be entitled to see that evidence. You should be entitled to see, before deciding on your plea, any materials which the Prosecution have in their possession upon which they don’t intend to rely (usually because such material doesn’t support their case). You should, if you wish to do so, be able to fight the charges. And you should not have to do so alone or with one hand metaphorically (or literally) tied behind your back.

Worryingly, though, it seems that those Great And Good who have their hands on the tiller and the purse strings of the criminal justice system take a different view to the one I take. I am Behind The Times. A dinosaur. Clearly, I am the Smashie and Nicey of the Criminal Justice System Show.

smashie & nicey

Over the past weekend, a little known local newspaper printed an interview with someone else with old-fashioned views about justice, a well known and respected Kent criminal defence solicitor who was about to retire. Most of you probably missed this article in the Kent & Sussex Courier, but even if you don’t know Brian Ferris – and I don’t – it’s well worth a read (check out the article here).

In addition to laying bare the dire state of the system following the decimation of legal aid cuts – a tale with which I am sure you’re all too familiar – Brian Ferris came out with something extremely important. “Please don’t ask if I’ve ever defended someone I thought was guilty,” he said. “My job is to ensure no one is convicted of a crime unless they are of age, sound mind, and the Prosecution can prove they’ve done it.”

If you ask any solicitor or barrister who practises in criminal defence, I’d lay money out that this is what they would say if anyone asked them what their job is. Or why they do it. And last time I checked, the burden of proof still lay with the Prosecution to prove that an accused person had actually “done it”.

And that quote from Brian really struck a chord with me when I looked at the latest consultation from the Sentencing Council again earlier today.

You can see the link to the full consultation here – and it was an article by the London Criminal Courts Solicitors Association (see link here) which reminded me of the frankly iniquitous position in which accused people could very soon find themselves if someone doesn’t put a stop to these plans. There are, as the article’s writer Tony Meisels points out, some frightening implications.

Those regular readers of my blogs will know that my view of the Sentencing Council is not a flattering one (see previous blog Does Your Client Plead Guilty, Very Guilty Or Extremely Guilty?). These are people who, frankly, should know better than to apparently be assisting in the dismantling of the fundamental principles upon which our criminal justice system has been founded and upon which it has operated successfully for hundreds of years.

'It makes no difference what I say. You've already decided I'm guilty.' 'Gasp! The witch can read minds!'

‘It makes no difference what I say. You’ve already decided I’m guilty.’ ‘Gasp! The witch can read minds!’

(Pic by Cartoonstock: http://www.cartoonstock.com)

I know I’ve ranted about this before, but I won’t apologise for banging on about it with the same frequency that Smashie and Nicey played Bachman Turner Overdrive’s You Ain’t Seen Nothin’ Yet. I will say it again: how can it be right that any accused person should be expected to enter any plea, guilty or not, when the evidence upon which the allegation is based has not been provided to them or to their legal representative (if they have one)? How can it be right that the Prosecution can be in possession of such evidence – for they must be in order to be able to make a charging decision – and not provide that evidence to the accused person?

How can it be right that legal advice must be predicated on the basis of only a case summary written by a police officer who has a vested interest in getting a guilty plea (looks great on the Division’s crime stats, doncha know?), when we all know from bitter experience that such summaries are very often (i) biased, (ii) factually inaccurate and (iii) are not actually EVIDENCE?

A solicitor friend of mine related a tale the other day of recently representing, in a police interview, a client who had been arrested for dealing drugs to undercover police officers. My friend’s client was going to plead guilty and so – being conscious of the fact that in order to obtain maximum credit for a guilty plea, you practically have to admit the offence to police before you’ve committed it – he advised his client to make full admissions in the interview, which could then be referred to in his favour when it came to sentencing.

Only problem was that, when the case came up for first hearing in the magistrates’ court, there was no sign of those admissions in the MG5 – yes, that’s the code name for the case summary prepared by the police. Not only was there no sign of those important admissions, but the case summary stated that the Defendant had made no comment in his interview! Imagine if that Defendant had had a different firm of solicitors representing him by the time he came to first appear in court (which isn’t unusual)? Or if he was representing himself (which also isn’t unusual)?


And it’s that MG5 document – and very often, ONLY that document – upon which the Defendant and his legal representatives are supposed to make a snap decision on plea at the first appearance in the magistrates’ court or, increasingly, at the Crown Court’s new Pressure To Plead Hearings of which the senior judiciary are seemingly so fond.

Worryingly, this also comes in the same week when two different barristers I know have spotted – in interview transcripts in cases in which they are instructed – police officers ‘advising’ the interviewee that they’ll get a discount on sentence if they are guilty and admit responsibility at an early stage, and the earlier the ‘admission’ the greater the discount. Only problem is, it’s not the job of the dibble to be giving advice to suspects they are interviewing.

And, as one waggish dinosaur pointed out, perhaps he was having a senior moment – but he seemed to recall there being some Act of Parliament from a few years ago which introduced a code of conduct for police or somesuch, which said that any confession induced by a promise of an advantage would be ruled inadmissible. PACE, anyone?

The Prosecution and police – and the Sentencing Council, come to that – might also want to think back to the scathing words of the Court of Appeal in the case of Lawrence (see the full report on BAILII here – in particular, paras 4 and 10). There, after having (for reasons which are unfathomable to me) entered a guilty plea to a serious firearms charge without apparently having seen any of the important technical examination evidence regarding firearm classification, the unfortunate lady languished in prison for the next several months before someone obtained the requisite evidence and realised that she hadn’t, in fact, actually committed the offence to which she had pleaded guilty.

So you’ll forgive us old-fashioned defence dinosaurs if we’re, well, a little bit sniffy about this shiny new regime.

In case the members of the Sentencing Council have forgotten, the first direction on law that is given in every criminal trial is that it is the Prosecution who bring the case and so it is the Prosecution who must prove the case. In every case. What is so difficult to understand about that? And why are the Sentencing Council seemingly so keen to get rid of this?

If we’re not careful, we will soon find ourselves operating trials in Kafka-esque fashion (if we haven’t reached that stage already), where a Defendant will be arrested on charges of which he is unaware, and plunged into a court system where everything is secret, from the charges to the rules of the court, and the guilt of the Defendant is assumed.

Still, I guess I must just be old-fashioned, eh?

If you are too, I sincerely hope that you’ll be persuaded to respond to the Sentencing Council’s ‘consultation’ (let’s hope it’s not one of the MOJ’s infamous ‘nonsultations’) and tell them exactly what you think of the apparent efforts to undermine the fundamental tenet on which our criminal justice system rests: that it is for the Prosecution to prove guilt. Nothing less than that will do, as some ‘dinosaur’ judges have been known to direct juries on the odd occasion…

The Sentencing Council may soon find some of us criminal justice dinosaurs rousing ourselves to hit back. You ain’t seen nothin’ yet. Great mate.