My Mid Life Crisis

“Try Me Kangaroo Court, Sport!”

So it’s been a while since I’ve managed to blog. It’s been a combination of inertia brought on by seeing the criminal justice system decline on a daily basis first hand (and no one seeming to do anything to stop that), and lack of time.

The current fees structure for the criminal Bar means that we are literally now only paid for time spent in court conducting hearings or trials, with no remuneration for preparation time. So you have to take on more cases to ensure more time in court to ensure you’re getting paid, and time outside of court sitting hours now has to be spent doing all the prep for forthcoming cases. Gone are the times when you could afford to take a couple of days out of court in order to properly prepare a trial. Or write a blog.

However, like most of the Bar, over the last couple of weeks I’ve found myself with a great deal more time on my hands than I had expected, despite a bulging diary. Overnight, with the closure of the courts, the work diaries of even the busiest barristers have been decimated.

So unfortunately for you all, I decided to put writing another blog onto my ‘to do’ list. Originally this was to be on the vexed topic of how the courts were still open and trying to carry on trials when just about all other public buildings apart from hospitals were shut. However, no sooner had I written the first paragraph than the Crown Courts had to close down after being rightly recognised as filthy, virus-ridden pits of iniquity.

Then I was planning to tackle the provisions of the new Coronavirus Act and related Health Protection (Coronavirus) Regulations and what those might mean for the courts dealing with them. But any plans I had for that were pre-empted by the case of Marie Dinou and the work of journalist Fariha Karim and barrister Kirsty Brimelow QC, both of whom uncovered the fact that Ms Dinou had been wrongly convicted of an alleged offence under the new laws after what can only be described as a bit of a Keystone Cops moment by the British Transport Police: see link to Fariha Karim’s story in the Times here.

One particularly worrying aspect about this story was that, but for the BTP putting out a press release glorying in the fact that they’d secured the first conviction under the new coronavirus legislation, no one would have known about it at all. Currently the courts which are operating – mainly magistrates’ courts – seem in effect to be operating a closed system of justice. Court reporting has become almost impossible as buildings are closed and many of those hearings which are still taking place have gone ‘remote’. Even worse, some of the best court reporters such as Tristan Kirk (follow @kirkkorner on Twitter) have been furloughed by their employers so they can’t carry out their usual work.

The implications for open justice of the new ‘remote’ operations – which the MOJ and HMCTS will be foaming at the mouth to keep in place when the current crisis is over – is likely a topic to which I will return. However, one concerning aspect of the Marie Dinou story was that, as if in some sort of Cliff Richard film “hey, kids, let’s do the show right here” way, she appears to have been tried and convicted at the first appearance.

“Whaddaya know, we’ve got a show!” The fantastic Talking Pictures TV trailer for the Cliff Richard film The Young Ones (1961). EVERYONE should watch TPTV.

Now, I appreciate that we are not in ordinary times, but I appear to have missed the practice direction which says that the rules of evidence, procedure and disclosure can be completely jettisoned in favour of trying accused people on the spot.

I try to avoid going to the magistrates’ court at all these days. After a client was convicted after a trial by West London magistrates on the basis that “we find the complainant credible because she’s the complainant, so we find the Defendant guilty”, I refused to go there again. (Yes, they actually gave this as their reasons – conviction subsequently successfully appealed.) But I was still surprised to see the report in the Dinou case that appeared to suggest that everything I used to know about trial procedure had gone for a burton.

One of my blogging idols, Barrister Blogger (ooh, I haven’t half got a crush on him!), has now put out a blog which deals in further detail about the shenanigans in Tyneside, which you can and must read here.

And seeing his blog made me wonder if the events in North Tyneside were a mere aberration, or whether this procedure – less summary justice, more peremptory justice – was more widespread.

Turns out that it is.

Many thanks to solicitor SM, as I will call him, who last week witnessed first hand, in a court in the West Midlands, what could best be described as a kangaroo court. What happened wouldn’t have been known if SM hadn’t reported this on a social media group for criminal lawyers, in real time, as it was actually happening.

I report what SM reported with his permission. The events took place in open court on 31st March, though at first blush you’d be forgiven for thinking it was a day later. The chronology reads like a multiple choice exam for district judges, where the wrong answers were selected by the candidate throughout. See what you think.

SM was at the magistrates’ court as duty solicitor. A custody case came to him with the Defendants charged with obstructing a police officer. They wanted to contest the charge – it seems to have had some relationship to the current COVID-19 situation though not a charge under the new provisions. Acting as duty, SM addressed the district judge on the basis that the Defendants intended to plead not guilty and wanted to have a trial. The district judge then said he wanted to deal with the trial then and there. 

Now, as SM (and presumably the judge) knew very well, the rules are clear: as designated duty solicitor he cannot act in a trial. Therefore, SM suggested that the Defendants should be allowed time to instruct their own legal representative, which as the Defendants were in custody would necessitate them being given a reasonable opportunity to do so. The Defendants wished to do this. It should have therefore be a straightforward entering of not guilty pleas and adjourning to a suitable date for trial.

Except the judge was for some reason determined that a trial was going to take place that day. He therefore refused bail and remanded the Defendants in custody until 2pm to find legal representation. Which was going to be pretty tricky, as they were in the cells without access to phones or the internet. Oh, and the case papers had only been served on SM digitally (in his role as duty solicitor) so he could obviously not provide them digitally to the Defendants himself. They hadn’t seen them.

At 2pm, the district judge attempted to start the trial. The Prosecutor – quite rightly – applied to adjourn. The prosecution had obviously not been in a position to comply with their procedural duties to review the unused material and certify the disclosure schedule, as the case had only had its first appearance a couple of hours earlier. As the district judge should have known, those requirements are mandatory, not a matter of choice.

The district judge refused the prosecution’s application to adjourn the trial.

By now, SM was pretty perturbed at what he was watching. But matters got worse.

The district judge then purported to ‘court appoint’ SM to cross-examine the Crown’s witnesses as (hardly surprisingly in the couple of hours they’d been sitting in the cells) the Defendants had not managed to secure representation.

There was a fundamental issue with that: SM was at court in his capacity as duty solicitor, so not permitted to conduct trials with his duty hat on. He was invited to sign out from that role to take on the court appointment. He wasn’t happy about being put into this position, but the district judge told him he was not allowed to refuse.

By this time, SM had not even seen the four tranches of police body worn footage (amounting to over two hours) on which the Crown’s case was apparently based and upon which they would rely at trial. Neither had the Defendants. No one knew, for example, if there were any potential defence witnesses who might need to be contacted.

The district judge also appeared to misapply (putting it politely) the statutory requirements for ‘court appointed cross-examination’. The provisions for such an appointment can be found at ss34-38 of the Youth Justice & Criminal Evidence Act 1999. The purpose of the provisions is to prevent Defendants from cross-examining in person a particular group of vulnerable witnesses: complainants in proceedings involving sexual offences (s34), or ‘protected witnesses’ in cases involving children or adults in cases such as indecent images, child cruelty, modern slavery, kidnapping or false imprisonment, child abduction, or offences involving assaults (s35).

Suffice to say, police officers giving evidence about allegedly being obstructed outside their own police station don’t fall into the ‘protected’ category.

The only provision which could conceivably have applied in order to make the court appointment legitimate was s36. The details of that section are here:

As the prosecutor had not made any such application, SM had to conclude that the judge had considered that under s36(2)(a) the ‘quality of the evidence given by the witness on cross-examination (i) is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and (ii) would be likely to be improved if a direction were given under this section, and (b) that it would not be contrary to the interests of justice to give such a direction’.

Seriously?

Further, under s37(4) the court is required to pronounce its reasons for making such an order (which comes under s38) in the first place, and in the magistrates’ court to enter those reasons in the register of proceedings. I think you can probably guess at whether that happened or not.

Not daunted, the prosecutor – still acting quite properly – again applied to adjourn. The district judge was told that the unused material was actually quite weighty and needed to be properly reviewed and certified. This apparently did not go down well, with the judge forcefully expressing the view that the CPS had had “plenty of time” to do this as this was apparently “the only case in West Mercia”. This was followed by a swift departure from court with an order that the Chief Constable be telephoned – though quite what the CC would have done with an unused material schedule is anyone’s guess.

Further information was given to the court by the prosecutor, attempting to comply with the Crown’s duties regarding disclosure: all high ranking prosecutors were in a meeting and would be available tomorrow so they couldn’t be consulted about this. The district judge’s response was to the effect of “if you’re asking for an adjournment, it is refused”. The Crown, he said, had had more than enough time to review and deal with this case. By then it must have been all of 12 hours or so since the arrests.

The Prosecutor then tried to withdraw from the case, presumably because their inability to comply with their proper professional duty regarding disclosure in the current circumstances meant that they were professionally embarrassed. This prompted the district judge to state that they couldn’t do that – which is so blatantly wrong on a number of levels that it’s hard to know where to start with that one.

And so the prosecutor took the only course open to them in the circumstances: they offered no evidence, so the case had to be dismissed!

Now, it’s not clear from what SM was able to observe whether this outcome was one which the district judge anticipated. But I would venture to suggest that it was not the ending which the police who had made the arrest had expected.

So why is scrutiny of this behaviour important? The rules of evidence and procedure – not to mention odd little things like statutory tests and requirements under Acts of Parliament, for example – are in place for very good reasons. For the protection of those prosecuted by the state (and, in the case of district judges, convicted and sentenced by the state too). To ensure fair trials. To avoid miscarriages of justice, which are both traumatising for those who are on the wrong end of them, and expensive to put right.

It’s unclear as to whether this case or Dinou are a result of edicts from on high, telling judges that they must get cases which are apparently coronavirus related dealt with immediately – whether the rules of evidence and procedure can be complied with by all parties (including the court) or not – or whether these are simply ‘local frolics for local people’.

What did become clear to me last week, though, is that this problem is more widespread than just these two examples. Here are two tweets on the topic, the second of which suggests that the problem of ‘peremptory trials’ pre-dates the current coronavirus panic.

If the rules of evidence and proper procedure have been thrust aside in our magistrates’ courts, which deal with 90% of criminal cases, on whose orders? Who has sanctioned this? Are the magistrates’ courts simply making all this up as they go along?

Whatever is the case, we dispense with the rules of evidence and procedure at our peril. The current emergency is no excuse to allow the summary justice arena to turn into some kind of kangaroo court.

Main pic by Wildy