No Wheels On My Wagon!

I really, really thought that, for a couple of weeks or so, the Ministry of Silly Walks had closed for the holidays. I was hopeful that we could pass July without news of the release of some preposterous new proposal to dumb down Lady Justice in the name of ‘court modernisation’ or ‘reform’. How wrong I was.

According to last week’s Times (see link to article here), the senior judiciary have a plan that is more cunning than anything even Baldrick came up with. In fact, Baldrick, it is as cunning as a fox that has just been made Professor of Cunning at Oxford University.

A van. A white van. With a court crest on the side. I know, let’s get vans to drive around the country, and get Defendants and witnesses to simply hop into the van to give their evidence via a TV link, instead of turning up to court to face a prosecution or to give evidence. The alleged miscreant, or witness, could just jump in, say cheese for the camera and Bob’s your teapot! Mobile justice!

I shit you not.

Yes, from the bowels of the MOJ comes this lightbulb moment. Apparently, says The Times, the Senior Presiding Judge Lord Justice Fulford is extremely keen on the idea. I sincerely hope that someone who has Actual Experience Of Conducting A Criminal Trial In The Last Millennium has been consulted about this. Aren’t there, surely, a number of obvious practical problems?

Aside from the fact that the proper solemnity of the occasion of a criminal court hearing will hardly be reflected by its participants being beamed in from the back of a white Transit, who is going to be employed to drive the things? Are those people going to double as the court ushers, to ensure that witnesses properly swear the oath? Or don’t have crib sheets with them out of sight of the camera? What happens if they need to be shown video footage which is being played in court? Or if they need to be shown a document to comment upon? How is this going to be achieved?

Worse still, is such a service going to be handed over to the likes of G4S or Serco, who already can’t get remanded Defendants to court on time (or at all) on a daily basis nationwide? How much are such vans going to cost? How many will there be? If there are multiple ‘remote’ witnesses in a single trial, where are Witnesses No 2 and 3 going to wait while Witness No 1 is giving evidence? Who is going to ensure they don’t compare witness statements whilst loitering on the nearest park bench or in the local McDonalds?

Talking of which, this is the age of criminal justice reform, right? And those court vans aren’t going to pay for themselves. So how about, as well as acting as mobile court rooms/witness boxes, you could sell burgers from them as well? We had to close all those court cafés after no one wanted to bid for the contracts at the risible rates the MOJ were willing to pay, didn’t we? Problem solved!

You honestly could not make this up.

IMG_20160726_232317

(Pic by Wildy)

Still, as regular readers of this blog will know, the CJS has been trundling towards hell in its own wagon for some years now. Various stories reported by solicitors and counsel from around the jurisdiction over recent weeks lead me to believe that our justice system has finally screeched to the edge of the fiery furnace.

You will (hopefully) have some idea of the areas which are of such concern to all those of us practising at the coal face. Cuts, people having to represent themselves, court time and money being wasted by incompetent third party “justice partners”, digitalisation, reductions in access to justice across the board, dumbing down. But somehow, we carry on.

It’s a bit like that song that I remember from my childhood, on Ed Stewpot’s Junior Choice, about the pioneers trundling through the Wild West in their rickety cart, with a wheel gradually falling off on every corner. (I always thought it was by Dick Van Dyke, but it turns out that it was written by Burt Bacharach. Now there’s a thing.)

“Three wheels on my wagon,
And I’m still rolling along
The Cherokees are chasing me
Arrows fly, right on by
But I’m singing a happy song…”

Judging by some of the stories which I’ve heard from colleagues lately, it’s a matter of how long we can carry on now, before something has to give.

'I told you the idea of wheels on a cart was unworkable.'

‘I told you the idea of wheels on a cart was unworkable.’

(Pic, as so often, at the wonderful http://www.cartoonstock.com)

Some of those stories, I thought, must be exaggeration. Urban myth. Chinese whispers. Especially what was being reported from the magistrates’ court, where – as I observed in my previous blog, Dial M For McJustice! – any semblance of due process and procedure appears to have been unceremoniously jettisoned.

So I asked one of my more sensible solicitor friends to come up with examples, witnessed with his own eyes, of what’s actually going on in the lower courts. After all, we are told that 95% of all criminal cases are disposed of there.

I do actually have some sensible solicitor friends, one of whom is The Goth Lord. (Yes, The Goth Lord is sensible, even though he listens to a lot of Bauhaus.) The Goth Lord has been in practice for 20 years and is a solicitor-advocate, so these days makes a foray into the hurly-burly of the magistrates’ court only rarely. His patch is in the Garden of England, and after what he reported to me, you can only hope that you never have to appear there, either as a Defendant or a witness.

On one recent outing, he found himself in the ‘virtual’ court, which was ‘virtually’ (though not quite in reality) dispensing actual justice.

Example number 1: a gentleman appeared, surprisingly in person, charged with two dwelling house burglaries. The maximum sentence for these is 14 years’ imprisonment. One of these burglaries involved a confrontation with the unfortunate householder, which under the appropriate sentencing guidelines is an enormously aggravating feature. Furthermore, he had recently been sentenced to a community order for… another dwelling burglary!

The Goth Lord watched on idly, expecting as the guilty pleas were entered, that the magistrates would commit the two dwelling burglaries to the Crown Court for sentence (on the basis their sentencing powers were, in the circumstances, wildly inadequate for the sentence such burglaries should receive) and remand the miscreant in custody. After all, in the heart of Daily Mail country, what else should the hardworking taxpayers of the borough expect?

Imagine his surprise, then, when the magistrates not only retained jurisdiction but sentenced Chummy there and then… to an eight-month suspended sentence.

“Two wheels on my wagon,
And I’m still rolling along
Them Cherokees are after me
Flaming spears, burn my ears
But I’m singing a happy song…”

But it didn’t end there. The Goth Lord’s flabber was about to be further gasted.

Example number 2: next up was a chap who was on licence, having been released halfway through a five-year stretch. Chummy had succumbed to his old crack addiction, and had “gone out looking for money”, armed with a large knife. He chanced upon an old mate of his, and “asked him” for a lift. As they were driving along, Chummy produced the large knife, opining that “the area wasn’t safe to be in without one”, and casually mentioning that he had recently bought a gun. Not surprisingly, his mate was a little concerned, but compelled to felt continue to drive him around whilst Chummy popped into a few shops and stole some beers and “visited” a few people. Eventually, his mate was able to get away and called the police, telling them he’d been terrified by the knife and the comments.

Now, even the non-lawyers among you might be thinking that there would possibly be room for a charge of, say, false imprisonment, or kidnap, in there somewhere. Certainly The Goth Lord thought so. The CPS obviously didn’t, however, because all that Chummy had been charged with was theft of the beers and possession of the knife. And all this was being dealt with in unseemly haste, when the CPS did not even have a copy of the statement from his mate.

There was an immediate guilty plea, and The Goth Lord settled back expecting to see the bench immediately sending the case to the Crown Court for sentence. But no! The magistrates decided that they would really teach Chummy a lesson about not committing serious offences involving weapons whilst on licence for a five-stretch… by sending him to prison for 30 days! That’ll learn him! It would be funny, if it were not so serious.

“One wheel on my wagon,
And I’m still rolling along
Them Cherokees are after me
I’m all in flames, at the reins
But I’m singing a happy song…”

And there’s more.

Example number 3: as if to further throw sneezing powder in the face of Lady Justice, the bench next dealt with a man who was appearing before the court in custody, having committed a new offence in breach of a current suspended sentence. Now the law is quite clear on this: if you commit a new offence during the currency of a suspended sentence, the presumption is that the suspended sentence will be activated (either wholly or partly) unless it is unjust to do so. Chummy must have thought all his Christmases had come at once, when the magistrates told him that they weren’t going to activate it “because it’s your first breach”! Exactly how many do there need to be?

Perhaps when the tabloid papers next complain about soft sentencing, this will give them an idea of how it comes to happen. The Goth Lord is of the view that this unholy mess has a great deal to do with the new ‘allocation guidelines’ (see link here) which appear to have encouraged benches up and down the country to try desperately to cling on to any and every possible case to avoid it heading up to the Crown Court, even in circumstances which are plainly resulting in ludicrously lenient outcomes, such as those above. It is, of course, all to do with cost, this desperate scramble to avoid cases going to the Crown Court. It’s an unedifying spectacle, and those of us at the coal face know that it has nothing to do with justice being seen to be done and everything to do with operating as cheaply as possible at the expense of justice.

Well, you might be thinking to yourselves, couldn’t it just be that the benches in the Garden of England have gone a bit rogue, operating in some sort of Passport To Pimlico style parallel citadel? Things are tickety-boo in the rest of the country’s palaces of justice, right?

Think again.

For in courts across the land, justice is not only being thinly spread, it seems to have evaporated altogether. If you’ve had the temerity of being accused of an offence, that is. In magistrates’ courts across the country, you’d be forgiven for thinking that the burden of proof was now on the Defence to prove innocence. Has someone changed the most fundamental tenet of the criminal justice system without anyone noticing?

Other professional contacts across the country have provided countless examples of frankly shoddy prosecutorial practice which now seem to be accepted on a daily basis in courts nationwide. Far from being limited to The Goth Lord’s patch, it seems as if things are going down the pan all over.

“George? Should I get the bag of beads and trinkets?”
“Woman, I know what I’m doin’!”

You, as a member of the public – or “potential consumer of legal services”, as some of our more pointless regulatory bodies are wont to proclaim – might be entitled to think that, if you were unfortunate enough to be accused of a criminal offence and forced to have your trial in the magistrates’ court, you would at the very least be provided with copies of the witness statements upon which the Prosecution proposed to, well, prosecute the trial. You know, the witness statements that are what the charges are based on. The exhibits which the Prosecution say prove your guilt. Which is, after all, what the Prosecution are supposed to do: the burden of proof is on them to PROVE GUILT. And perhaps (oh, the temerity of it!) even any evidence which the Prosecution have gathered during the course of the investigation but upon which they don’t intend to rely – almost certainly because it doesn’t support their case.

Well, think again. By all accounts, these days all the Prosecution have to do is to provide a case summary written by the very police who are accusing you of the crime, and Bob’s your teapot – the magistrates’ court thinks this is all you need for your lawyer to be able to advise you on how to plead. Or even, as some lawyers have been discovering when turning up to conduct trials, that’s all the CPS have handed over even by that date.

All of this chaos resulted in the Criminal Law Solicitors Association issuing its recent Protocol on Prosecution Late or Inadequate Disclosure (see link here). When you read the document, it all seems very sensible: if the Prosecution haven’t complied with their duty to disclose sufficient materials to enable the Defendant’s lawyer to adequately advise on plea, the court ought to accede to representations from the Defence for an adjournment.

Except the courts won’t. So the CLSA protocol suggests that, in the absence of an adjournment to facilitate proper disclosure of the evidence upon which the Prosecution’s case is actually based, the legal reps quite properly tell the court of their predicament and simply advise their client at that stage that the only proper plea they can enter is not guilty. It’s pretty basic: it’s for the Prosecution to be in a position to prove their case. If they haven’t served any actual evidence, well, they can’t.

Unsurprisingly, this strict adherence to the letter of the law has gone down like a fart in a lift with magistrates’ courts. It wasn’t long before (certainly down in The Goth Lord’s neck of the woods) the magistrates’ courts issued ‘guidance’ – basically an attempt to strong-arm those practising in the lower courts – which appears to trample all over the presumption that an accused person is innocent until proven guilty by evidence or even that old chestnut that it’s for the Prosecution to prove their case. See legal advice note 5 of 2016 here: it really is a most astonishing document, driving not just a coach and horses but the Wacky Races Buzzwagon through the ordinary rules of criminal evidence and procedure.

wagon

(Pic: a magistrate and magistrates’ clerk driving the Wacky Races Buzzwagon through the rules of evidence and procedure at an unnamed magistrates’ court last week, possibly)

Unsurprisingly, this prompted the CLSA to issue a sharply worded retort (see link here). You may think that it seems ludicrous that a professional organisation should actually have to spell these principles out to a court, but that is the state we have got to these days.

“No wheels on my wagon,
So I’m not rolling along.
The Cherokees captured me,
They look mad, things look bad
But I’m singing a happy song…”

We truly have reached the hell/handcart interface.

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2 thoughts on “No Wheels On My Wagon!

  1. I don’t tweet so can’t comment on your twitter feed. I am a defence solicitor in the NW. I had a client aged 10 charged with rape x 3 of a 7 year old. I wanted the case kept in the mags. I can’t go into the details but I honestly didn’t think that the client could cope with a CC trial. I applied for the legal aid order to be extended to cover counsel. The DJ initially refused the application until I pointed out that no one can cross examine in a rape case unless they have been on the course. I added that I hadn’t been on it and neither had any one in my firm and I was blowed if I was going to subject myself to the course just to do this trial. Legal aid extended. I can’t say more about the case for fear of identifying the client but can say that he was not convicted. BUT, we had a superb DJ.

    • Quality of DJs across the country sadly seems extremely patchy. Down South you often have benches dealing with youth court trials. I shudder to think what might have happened in the case you dealt with if it wasn’t at your particular court…

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