Chattin’ S**t!

As a criminal barrister, I well know the feeling of trying to advise on the significance of a problematic piece of evidence to a client. Especially to a client who won’t listen to your advice. Who is wilfully blind to the disastrous effect that this particular piece of evidence is going to have on their case. Or who doesn’t want to hear how introducing that piece of evidence themselves is going to sink their case without trace. The client who persists in insisting that this piece of evidence is going to be the magic bullet in the case.

You, as the barrister, know this is only going to end one way. Disastrously. But if your client ignores your advice and insists on pressing on regardless, all you can do (apart from banging your head repeatedly on the nearest wall) is stand back, wait for the inevitable car crash and then say, “Sorry, but I did warn you.”

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Unfortunately, it seems that the Great And Good of the CPS are no different to that recalcitrant client.

The CPS, bastion of the Big Idea. Thinking about continuing to prosecute a dead person, anyone (see link to the Janner case here – no one said it better than Joshua Rozenberg)? Getting rid of large numbers of your in-house lawyers with hefty redundancy payments, then having to re-hire (guess!) a load of lawyers a couple of years later (see my previous blog Crystal Balls! here)? And now, with great fanfare, the CPS have announced that a New Big Idea, the programme named Speaking To Witnesses At Court, is to be rolled out nationally. Oh, and it’s going to be compulsory.

Now, notwithstanding my well known psychic powers when it comes to the criminal justice system, I can’t be the only barrister out there who has identified some fundamental difficulties with this scheme. The fact that I am even having to write this down is a matter of some astonishment to me. Even the famously circumspect Mark Fenhalls, leader of the Criminal Bar Association, has expressed the view that “I hope I am wrong but I fear that this is going to be a bumpy process”. I prefer to suggest that it is going to be a dog’s breakfast of the first order.

There are extremely good and obvious reasons why, if you are prosecuting counsel, you should avoid engaging in detailed conversation of any kind with the complainant or any prosecution witness in the case in which you are prosecuting. And that is because (i) you will probably find that that the complainant will start thinking that you are ‘their’ barrister, when you are not, and (ii) you will probably find that the witness speaking to you will very quickly want to turn to the topic of the evidence – not just theirs but other people’s – which you should not be discussing with them and should be refusing to do so.

How this ludicrous mandate will work in practice is anyone’s guess. Here’s mine.

  1. We are told that advocates should “inform defence representatives in advance of their intention to speak to witnesses and of the topics to be discussed”. Well, when are prosecution advocates expected to have time to speak at length to the witnesses? And when is this information to be shared with defence counsel? In advance of the day of trial (which is the day the prosecution witnesses will be at court, obviously)? Or two minutes before the trial starts? What if the defence representatives object to a particular proposed topic of conversation?
  2. Advocates “should never speak to witnesses unless a CPS official is also present”. By this, we must assume that a CPS paralegal or case worker is what is meant, since the idea of a CPS lawyer being available to speak to witnesses at court in the company of counsel is risible: you can rarely even get hold of a lawyer on the phone to obtain critical instructions about the progress of a case. The CPS are so short-staffed so far as caseworkers at court are concerned, the likelihood of finding one available at court to go to speak to witnesses with you is about as likely as finding Elvis sitting outside court 1. Or sitting on the bench inside it. Especially if you wanted to have your meeting at, say, 9am for a 10am trial. What if there are no available CPS representatives? Is the trial to be held up until one becomes available to accompany counsel to the witness room? Imagine the scenario at, say, Snaresbrook Crown Court, where there are 20 courtrooms running across two different buildings, and probably one caseworker per five courtrooms?
  3. Advocates should “keep a full contemporaneous note of conversations with witnesses”. As we’re all singing and dancing digital these days, presumably that’s on your computer, is it? The one with all your other confidential papers on it? Is the note to be countersigned? Surely the most sensible idea, and the one providing the most protection for counsel having to keep this note, would be to record it, like a police interview, and then there could be no dispute about what was said by whom. Only problem is, you can’t record the conversation since you’d be in the court precincts, in which the use of recording devices is prohibited under s9 of the Contempt Of Court Act 1981. Spiffing!
  4. Advocates “should be aware that the disclosure provisions of the CPIA will apply to such conversations”. Too right it will. And every defence lawyer will be demanding full disclosure about any such conversations. This is bound to increase the number of s8 applications, for starters. Which takes up more court time. The state of disclosure from the CPS is dire enough as it is at present, without the additional burden of considering notes of multiple conversations with multiple witnesses.
  5. “Please bear in mind that failure to adhere to the rules may lead to cases being compromised and you ending up as a witness not an advocate.” No shit, Sherlock. So, that would mean counsel would have to withdraw, a trial adjourned, justice delayed for everyone.
  6. “The prosecutor is responsible for covering the following matters with the witness before they give their evidence…” There then follows an exposition about the purpose of cross-examination and how it’s unfair for prosecution witnesses not to be warned about the type of cross-examination they will face. There’s a good reason for prosecution witnesses not to be warned: it’s so that, when they are asked those questions in front of the jury, or on a recording, their immediate reaction to the questions can be seen and assessed by the jury as part of their central function. This is all about the fact that it’s the prosecution who bring the case and the prosecution who have to prove the case – a fundamental tenet which seems increasingly to get forgotten in the race to pander to media hysterics.
  7. “It is important that prosecutors should not provide the detail of, discuss or speculate upon the specific questions a witness is likely to face or discuss with them how to answer the questions.” Important? It’s absolutely vital if you want to avoid being accused of witness coaching, or worse still, perverting the course of justice! This could be a very awkward conversation. What’s the betting just about every witness is going to ask, “So, what questions am I going to get?” as soon as prosecution counsel walks in? What if they have a tantrum when you can’t and won’t tell them?
  8. “However, to enable witnesses to give their best evidence prosecutors should ensure that they are informed of the matters set out below: the witness must be told that the purpose of doing so is to provide information to assist them and not to elicit information from them. They should be discouraged from giving a response. Should the witness make any comment which is relevant to the issues in the case then it should be recorded and disclosed, if it may undermine the prosecution case or assist the defence case. Advocates in the Crown Court should ensure that, during these conversations, they are accompanied by a CPS member of staff (paralegal) based at court to assist with recording the meeting and conversation.” So, if you can’t find any available CPS member of staff, what are you to do? Ask the judge for the case to be adjourned, since speaking to your witness is a mandatory requirement of your instructions and you cannot speak to the witness without a CPS member of staff being present? I can see that going down a bundle at court when the judge has a jury waiting and is eager to crack on. What if the judge refuses to adjourn, potentially placing you in breach of your instructions?
  9. “If it is possible to do so, vulnerable and intimidated witnesses should be provided with this information in advance of the trial date. This could ideally be done at the same time as a special measures meeting.” Do prosecuting counsel go to a special measures meeting? It’s rare to even get a proper case conference when prosecuting these days, let alone have counsel attend a special measures meeting on top? And how would such pre-trial attendance be remunerated? Or is this something else we’d now be expected to do pro bono?
  10. “In the case of others, the best time to give this information is when the witness is being referred to his / her witness statement and being reminded that they should tell the truth. They should then additionally be informed that nothing they are told should affect what they say but that they are permitted to be informed of the following information to assist them…” And here comes the stink bomb!
  11. “The general nature of the defence case where it is known (for example, mistaken identification, consent, self-defence, lack of intent). The prosecutor must not, however, enter into any discussion of the factual basis of the defence case.” How is that going to be avoided, when you’re telling the witness the nature of the defence? Pretty soon, once the witness knows the basis on which they will be challenged, they will be rehearsing their answers, potentially altering their testimony to ‘deal’ with the defence… All the things which AREN’T SUPPOSED TO HAPPEN. Even having such a conversation will give the witness time to prepare particular answers in a particular way – isn’t that indirect coaching under another name?
  12. “Where leave has been given for a particular witness to be cross-examined about an aspect of their bad character under section 100 Criminal Justice Act 2003 or their sexual history under section 41 Youth Justice and Criminal Evidence Act 1999, then that particular witness should be informed that such leave has been given.
    Witnesses should be reassured that you can object to intrusive/irrelevant cross- examination and, if you do so, the Magistrates/Judge will decide whether the questions need be answered. The witness should be advised that the Magistrates/Judge’s decision must be followed.” So, the spectre is raised of witnesses turning to the judge, when they’re being subjected to some perfectly proper but, for them, uncomfortable cross-examination, and questioning it in front of the jury. “I wasn’t told by the prosecutor that the defence would be allowed to ask me that question…” Etc etc.
  13. “A note of the fact that the prosecutor has spoken to the witness should be made by the prosecutor or CPS paralegal. If the witness makes any comment that is disclosable to the defence under the CPIA, then a note of the comment must be made immediately and the note disclosed accordingly.” As Mark Fenhalls observed, the CPS is making “strenuous efforts to have more case workers at court, but how they are going to find the resources to deal with witnesses in this way in busy court centres I simply do not know”.

So, looking at this from the outside, how can the defence be sure that any note taken by any party to the opposing side will accurately reflect what actually happened at the meeting?

If you are prosecuting counsel and such discussions are now mandatory, how can you ensure that your position is protected, so that you don’t turn from being counsel to potential witness in one fell swoop? I can just imagine the scene: you’re prosecuting, say, a serious sex case. You’ve spoken to the complainant shortly before they gave evidence. You’ve had to tell them that that their sexual history may be the subject of questions. The defence start asking those questions. The complainant stands up, points to you and says: “But you told me that they weren’t allowed to do that!” You know this to be totally false. The witness is therefore lying on oath. Your witness. And the only witness to the false statement on oath is… you! Even a lay person could see how this would get very, very messy. I predict a slew of such cases aborting trials left, right and centre.

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Should the CPS be asked to confirm that, as these instructions are mandatory, counsel are also instructed to decline to call any witness until they have been spoken to? After all, surely non-compliance with these mandatory instructions would lead to removal from the CPS list or, worse, the possibility of being reported for disciplinary proceedings?

The new PTPH form suggests that witnesses’ attendance at court should be staggered, to avoid them having to wait for long periods before being called. What if witness 2 arrives at court only once you are on your feet dealing with witness 1? If your only chance to speak to witness 2 will be by having a half-hour break after witness 1, we can anticipate a lot of restless juries and apoplectic judges. What if the witness turns up at lunchtime, when all the CPS staff are on their lunch break?

There will be Mexican standoffs in court rooms across the country. The inevitable result will be delays and interruptions to trials, when witnesses do not arrive on time so as to enable you to speak to them, or when bad character applications are granted mid trial. If granted once the witness is in the witness box in the middle of giving evidence, then of course counsel would not be allowed to speak to the witness at all. What about your feckin’ mandatory instructions then?

Of course, many of these issues have already been addressed, by greater minds than mine, in the CBA’s response to the ‘consultation’ (see link here). Unfortunately, the response appears to have been completely ignored by the Powers That Be. So when trials are routinely grinding to a halt, don’t come complaining to counsel.

Amid all this, one important factor appears to have been completely overlooked: there is already a perfectly good system in place for witnesses to be put at their ease and have the general court procedure (not the specifics of the case) explained to them. The witness support service has already been carrying out tasks such as this for years. Why we would want to go further than this, risking the integrity of the trial process, is beyond me.  This dangerous new mandate is wholly unnecessary. As the CPS were told, in terms, by the representative body of the very people who will have to carry out the mandate.

As a client once replied to the prosecutor in our trial, after the Crown’s case was put to him in cross-examination: “You’re chattin’ shit, bruv.”

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(The parts in quote marks at paras 1-13 above are taken from the CBA Monday Message of 16.5.16.)

 

Rumpole & The Foolish Client

I believe that it was Abraham Lincoln who said: “He who represents himself has a fool for a client.”

However, it could just as well have been Horace Rumpole. Or me, or indeed any other criminal barrister I’ve ever met. We don’t just say that in order to drum up work. It’s because we’ve all seen at first hand what actually happens to people who end up representing themselves in the criminal court – whether by choice or otherwise.

As if there weren’t enough signposts being put up by this Government towards the end game, several newspaper articles within the last week or so have given that game away. You don’t need to have my now well recognised psychic powers to have worked it out.

This Government don’t want ordinary people to be able to have access to the justice system.

In a deeply depressing article published in The Guardian – see the link here – the Transform Justice charity finally managed to make public what all criminal lawyers have been shouting for years, except no one has been listening: the number of people appearing unrepresented in the criminal courts has been exploding. Magistrates reported that a quarter of those appearing in front of them were representing themselves.

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Fortunately, this phenomenon is as yet less common in the Crown Court, but I’m not the only one who’s noticed an increase in numbers there. The MOJ, of course, are peddling one of their usual lies about how figures for unrepresented Defendants have supposedly remained stable since 2010. So it’s funny that, in the same article, the same department appear to have admitted that they, um, don’t have any official figures as to how many people don’t have lawyers in the lower court and are conducting an investigation into the situation in the Crown Court. In other words, they don’t know their arse from their elbow, as usual.

This article from the LCCSA about the hazards of and for unrepresented Defendants (see link here) pretty succinctly sets out the problems. For those of you out there who may be thinking that you can be your own Rumpole, what you need to know is that: (i) simply because you’re acting in person doesn’t mean that you’ll be able to sling mud indiscriminately; (ii) the judge or magistrates will have to keep you on track with what’s relevant and admissible and what isn’t allowed; (iii) the rules of evidence and disclosure still apply to you, even if you don’t know them; (iv) neither the Prosecutor nor the judge are there to help you, and in fact professionally should not be doing so; and (v) you won’t be able to look all this up on Google because you won’t understand what you’re looking at.

Why on earth would anyone want to not be represented?

According to that LCCSA article, some people do: one of the main reasons I’ve heard is that some people who are innocent think they’ve no need of a lawyer when their case gets to court. Because they haven’t done it, they reason, they don’t need legal advice. Well, let me tell you, if you’re saying you’re not guilty, the very last thing you need to be doing is trying to represent yourself at trial. You will not be able to be objective about the evidence, as your lawyer will, and so you won’t be able to best present your case in the witness box.

And with the current drive to expect people to enter pleas on very limited disclosure, if you’re unrepresented you won’t have a clue if something important is likely to be getting held back by the CPS, and you won’t know where to dig for it. Your lawyer will.

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According to Transform Justice (link to full report here), the lawyers interviewed reckoned that on average, unrepresented Defendants came off at least 15% worse when being sentenced than those who had a lawyer. There were also serious issues with Defendants in person not even understanding what they were charged with, pleading guilty when they plainly had a valid defence, not pleading guilty when they should have (and therefore losing sentencing credit on a massive scale), etc etc. One Defendant who appeared via video link said nothing in his own defence. Having been duly convicted, it was later realised that he was deaf and hadn’t understood a word of the proceedings.

I’m sure we’ve all got our own stories about the unhappy sight of the hapless Defendant attempting to grapple with the niceties of criminal law and procedure when representing themselves. I vividly recall, when prosecuting an appeal against conviction a few years back, the exasperated judge having to deal with an unrepresented man who had been convicted by the magistrates’ court of driving without insurance. Hardly the crime of the century, but the bloke was adamant that he hadn’t done it.

Having represented himself in the magistrates’ court and been summarily convicted, he decided that he was going to appeal to the Crown Court. Of course, he had an automatic right to do so. Trouble was, he was still unrepresented by the time his appeal came up. And he didn’t have a defence.

He thought he did. He was saying that he’d bought an online insurance policy that he believed was genuine but in fact turned out to have been a scam in which he’d been duped. So he didn’t have a defence, since he didn’t actually have valid insurance. What he actually had was mitigation. Which myself and the judge spent an entire day first of all trying to explain to him, then going through the motions of me presenting my case, him calling his (irrelevant) witnesses, them being shown to be irrelevant in a couple of sentences, the judge losing his patience, and the poor fellow paying not only a substantially increased fine, but increased costs to boot. He’d have been better off paying a lawyer. And the Crown Court would have saved probably five hours of its expensive time: supposedly, it costs around over £10,000 to operate one of their courtrooms for a day.

Some people don’t have a lawyer because they can’t afford it. Or think they can’t. Well, they’d be surprised. In my book, if your case is in the magistrates’ court, you probably could afford a lawyer if you can afford to pay for Sky Sports every month and have an annual foreign holiday. Sometimes it’s a matter of priorities. But even then, there are still far too many people in the lower court left without representation. Gawd helps us all if this bugger’s muddle spreads any further into the Crown Court…

As it clearly has, if my experience this morning at a very large Crown Court centre in London was anything to go by. Out of six appeals cases listed, in five the Appellants were unrepresented. Guess which one of the hearings was the only case to be effective that morning?…

Of course, I’m just talking about the criminal courts because that’s what I know about. By all accounts, the situation is far worse in the civil and family courts, with legal aid being virtually non-existent in either forum.

Naturally, it’s fine for the Government to use the top QCs in the country to argue their case in  the highest courts in the land when they want to try to avoid an inconvenient or embarrassing result. This story from The Guardian in 2013 (see link here) highlighted how James Eadie QC, who seems to be the MOJ’s ‘go to’ guy when they’ve got something particularly useless and unattractive that they want to argue, had apparently received more than £2.2million for representing the Government in the preceding three years. (I bet his fees have gone up since then, unlike those of legal aid lawyers. The idea of me earning £2.2million in my entire career is risible.)

However, even counsel of that quality or cost often can’t save hapless Government departments from the results of their own ineptitude, incompetence, negligence or downright deliberate nastiness. Like the recent defeat in the Supreme Court over the legal aid residence test (the story is here), where the MOJ were swiftly given a bloody nose by their Lordships. I didn’t notice Grayling or Vara or any of the other architects of the ill-fated scheme popping along to represent the department in person. They wouldn’t dare (though I’m guessing that, if it was a hearing by video link, the current Attorney General could, ahem, ably deputise.)

No, if the Government want to fight a case, they get in practitioners of the highest quality. Which, you may think, is how it should be, so long as those on the other side of the legal argument also have the opportunity to have representation of the same quality.

So why would the Government want to manoeuvre citizens into the position where, if coming up before The Beak, they don’t have a lawyer? Unfortunately, the answer is all too obvious: the thinking is that people who aren’t represented and haven’t had legal advice about the strengths, or weaknesses, of the case against them will just plead guilty straight away rather than fighting the case to trial. That they’ll feel under pressure to do so because they won’t be able to cope with the intricacies of the court process. Bish bosh, bang in a plea, get it over with.

Trouble is, as my example shows above, it doesn’t always work that way. Conversely, or perhaps perversely, many people faced with appearing in court without a lawyer will pursue the case to the absolute limit, whether that is advisable or not. And in the case of a Crown Court trial, inevitably leaving chaos and wasted court time in their wake.

Still, if you’re representing yourself, you probably won’t be able to recognise whether you’re strolling into a miscarriage of justice of your own. The problem is, if you do, there won’t be anyone there to pick up the pieces for you. Which is probably exactly what this Government want.