The Ministry of Justice must think we’re a bunch of mugs.
Our Leaders seem to propose that the courts should be run like Judge Nutmeg’s Palais de Justice off Vic Reeves’ Big Night Out. Trial judges must preside over a game of That’s Justice, where an audience member is ‘tried’ for a random and nonsensical crime, with the punishment decided by spinning the hairy Wheel Of Justice whilst chanting “spin, spin, spin the Wheel of Justice, see how fast the bastard turns”. Those of you with memories as long as mine will obviously recall that, wherever the wheel landed, Vic would move the wheel until it landed on whatever punishment he fancied.
Every day, it seems more and more that’s where our justice system is actually headed.
Apparently, my last blog Objection! Sustained! (see link here) struck something of a chord. And not only with practising lawyers but with members of the public as well. It seems that all the procedural errors which I pointed out from TV’s Apple Tree Yard’s trial scenes caused perturbation. And that’s a problem.
Because not only do we have TV shows which inaccurately portray what actually happens in a criminal trial and behind the scenes of an investigation (the new series of Broadchurch seems to be doing a pretty good job of propagating a few more myths this week), but increasingly MPs, other public figures and the media are more than happy to flap their gobs about criminal justice processes with scant regard for truth or accuracy, fairness or due process. Sometimes, it seems, the ignorance is wilful.
This is dangerous, because the way that the criminal justice system is portrayed has a direct effect on how it’s run by the Powers That Be. The MOJ is a basket case of a Government department at the best of times, particularly at the moment when it’s being run with little care for the rule of law or access to justice.
The misinformation means that Liz Truss and the wookeys at the MOJ obviously think they can get away with gradually denuding the court service and the justice system of enough money to run it efficiently and effectively. Something like 40% of its funding has been stripped out since 2010, and because the public are kept misinformed about how the system works, there are no howls of protest when another local magistrates’ court is closed, or court rooms in large Crown Court centres sit idle because the MOJ won’t fund enough sitting hours to keep them open, while trials take ever longer to be listed because there are too few judges to hear them in a timely fashion.
If you replaced the words ‘justice system’ with ‘NHS’ and then tried the same thing, the tabloid press would have your guts for garters and there would be a march on Downing Street. However, because it’s ‘only’ the justice system, the Government regards this as somehow acceptable.
The last cause celebre where misinformation has been peddled like lucky heather is sex case trials. If you believed everything you read in the papers, you’d think that in every single trial of a sexual allegation the complainant is shouted at repeatedly as they’re grilled about every single occasion on which they’ve even kissed anyone, never mind had sex, as a baying mob of bewigged barristers bang gavels on the bench. This is totally false, but the raised voices of various special interest groups seemingly hell bent on ensuring that trials are less fair than they used to be appear to be drowning out rational argument.
The most recent example of this is in a report published by Vera Baird, once a QC practising in the criminal courts and so Someone Who Should Know Better. Baird was a subsequently a singularly undistinguished Solicitor General under the Labour Government of the mid 2000s, and is now earning a crust as Police & Crime Commissioner for Northumbria. If this recent Guardian piece here is anything to go by, she’s yet another public figure who’s got a bee in her bonnet about the operation of s41 of the Youth Justice & Criminal Evidence Act 1999 in criminal trials.
Now this is a vexed topic which has reared its head repeatedly over the past couple of years, seemingly with one destination in mind: to ensure that those people facing trial for sexual allegations don’t get a fair crack of the evidential whip.
The dangerous part of all this is how Baird’s pronouncements have been seized upon as gospel by various corners of the mainstream media. What they don’t seem to have realised – or if they have, they’ve ignored it for their own agenda, which is worse – is there are some big gaps in the info presented, which beg some serious questioning.
For starters, the Guardian piece (which doesn’t actually feature a link to the full report, and neither does Baird’s website, though it’s apparently called Seeing Is Believing and is summarised here) exposes the shortcomings of focussing on one small corner of the UK. It was compiled by 12 ‘volunteers’ sitting in to observe 30 trials. Could these volunteers perhaps be people who already have a particular agenda? One of them seemed to be the director of a local ‘rape crisis’ charity, so you can perhaps see where she’d be coming from.
Were any of them trained lawyers who had previously dealt with s41 applications during a trial process, so understood the complexities of the legislation? (No, but apparently they had a Nutshells session or two from the CPS.) Had they seen all the pre-trial hearings, where there might potentially have been legal argument/discussions, or just the trials themselves? Had they been privy to the contents of any skeleton arguments served, or even the actual trial documents? Or to any discussions between counsel outside of court? It appears not.
The writer of the piece betrays her own ignorance of procedure when she refers to the alleged rarity of barristers meeting their clients before such a trial. This is patent nonsense: if you’re defending you would have inevitably had a conference with your client in such a case, even if only at court. Not to do so would be negligent, to say the least.
And if prosecuting, the CPS code requires you to at least meet the complainant – but the important thing to note is that you are not ‘their’ barrister, since you’re instructed by the Crown and not by them. A crucial distinction which seems to have entirely passed the Guardian by, along with the fact that if prosecuting you would not be able to have a full ‘conference’ with the complainant as you are not allowed to discuss all the details of the evidence or disclosure with them. The summary of the report suggests that Prosecuting counsel should have a meeting with the witness on a day other than the trial date.
That’s where my mate the RASSO prosecutor, who spends week in week out prosecuting sex cases at trial, almost spat out her coffee with indignation. Because guess what? This is what already happens! Miss RP herself was apoplectic when she read this report: “It makes it sound as if we’re prosecuting these cases in the 1980s. I half expected the suggestion that counsel were saying to complainants, ‘Fire up the Quattro, pet, it could’ve been worse’!” FFS.
The taxpayers of Northumbria might be interested in this report too, since according to her website here, the job of Baird as Northumbria’s Police and Crime Commissioner is to “have responsibility for police governance”. Quite how any argument about the operation of s41 in criminal trials up and down the land relates to those duties is anyone’s guess, since the police have nothing to do with s41 applications, but I’m willing to be enlightened.
And why was this experiment considered necessary, when information leading perhaps to a more balanced countrywide view could be obtained from information already held at all 77 court centres? I’m no statistician, but it seems obvious that such a small, geographically limited sample would hardly be expected to provide robust data upon which any policymaker could safely base any decisions, particularly those which lead to changes in the way trials are conducted or funding is awarded (or removed).
So yes, I’m angry. And I’m not the only one. They, the Powers That Be, they just wouldn’t let it lie.
I have spent the greater part of the last several years conducting sex trials. Out of interest, I checked back through my 2016 work diary to see in how many of those cases a s41 application was actually made, and in how many it was granted. Unlike Baird’s limited survey, the cases in which I was involved took place at various different court centres all around the country and I was conducting two a month on average. They were a mix of historic and contemporary allegations, with complainants across a very wide age range. In only two of those was a s41 application made, and in both it was granted.
The reason? The issue of previous sexual behaviour by the complainant in respect of her relationship with the Defendant was highly relevant to the issues in the case. The defence could not properly have been conducted without the jury hearing questioning about the previous sexual behaviour. In one of the cases, the complainant herself had introduced the topic of her previous sexual relationship with the Defendant in her video recorded evidence-in-chief, so obviously he had to have the chance to dispute that evidence where necessary. If I had not been permitted to ask those questions, the jury would have been left in the dark about important matters, and the trial would not have been fair.
Yet from all the reporting, you’d think such questioning happens in every case. It doesn’t. It’s very tightly controlled, and in my experience judges are very quick to jump down the throat of any counsel who transgresses the rules.
It’s not just me who thinks this. Two QCs (as they’re in the media, they should inevitably be referred to as ‘top QCs’) pointed out the same in The Times: see link here. As Eleanor Laws QC and Angela Rafferty QC accurately say, the 30 cases supposedly studied by the ‘observers’ sent out in Baird’s ad hoc experiment can hardly represent the true picture of the 2,274 contested rape trials which apparently took place at all the court centres in England and Wales during the time that the Baird observers were pootling around in Newcastle.
So yes, it does make me angry that such misinformation is passed off as in any way informative.
But what about those of us still left clinging to the coalface, attempting to conduct trials in a professional manner whilst hanging on by our fingernais in the teeth of the MOJ austerity hurricane? Well, THANK THE LORD HARRY for the estimable Colin Wells and the third edition of his invaluable tome, Abuse Of Process!
I’ve met Colin Wells, so he knows who I am. Though if he reveals it, I’d have to kill him. Which would be a shame, since with the way things are going in the criminal courts, this 300-odd page volume of practical tips, commentary and topical case law is likely to overtake Archbold and Blackstones as the essential reading for criminal trial advocates.
In easily digestible chapters and with an index which is actually navigable (unlike Archbold), Wells sets out the details of the jurisdiction of the doctrine and all routes to actually running the argument, from issues arising at the pre-charge and investigation stage through to confiscation proceedings and all points in between. In addition to some excellent sample skeleton arguments in the Appendix, I found the chapter on Disclosure particularly enlightening: bearing in mind the wholly inadequate state of just about every schedule of unused material I have been served with in the last 12 months, I’ve a feeling that section will be thumbed to pieces before the year’s out.
I’ve already started considering how I could shoehorn in an abuse argument the next time one of my s41 applications is refused. And the content of p207, in which Wells deals with arguments about the disobedience of court orders, is probably something which I will consider for my next tattoo. Though I wonder if any Defence counsel out there have noticed the CPS being subjected to any “reduced tolerance for failure to comply with court directions” from the courts? I certainly haven’t.
So as I said, essential reading. Though with every page I turned and every example I read which chimed increasingly with my experiences in practice, I felt myself getting more and more angry. You wouldn’t like me when I’m angry. The book’s green too, by the way.
(Me: yes, I am angry. Pic by Wildy)
Abuse Of Process by Colin Wells is out now, published by Oxford University Press