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:

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.



4 thoughts on “You Ain’t Seen Nothin’ Yet!

  1. I don’t disagree with anything you say, save for the implication that the prosecution are somehow implicit in this change. The CPS are as much a prisoner of this as anyone else- pressurised to make charging decisions on incomplete information and powerless to slow cases down once they start churning through the system

  2. Hear hear to all of that. Like so many other things in life we seem to be walking blindfolded into a “big brother” state where expedience overrides justice at every turn.

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