In November 2011 there was an incident that lead to a man being arrested. I’ll call him Mr K. This lead to a Court case at a Crown Court in London, which I’ll call Victoria Crown Court. This isn’t about Mr K, it’s the story of a system that has been driven in to the ground.
As I say, the incident was in November and Mr K arrested that day. He was bailed for enquiries (not unusual) and was charged in January 2012. The case went through the Magistrates’ Court (he had, quite properly in the nature of the case, elected Crown Court trial) and had his ‘PCMH’ (Plea and Case Management Hearing where the defendant is asked if he is guilty or not guilty and, if he says not guilty, then the trial date is set and directions made for the trial).
This case, as most are, was put into a ‘warned list’ in July. This means that instead of saying “right, you’re trial will be on the 1st July”, a one, two, or even three week window is given for the trial. All parties will get a phone call the night before to say your trial is in.
The reason for this is that many cases ‘crack’ on the day of trial – they are adjourned, or a defendant pleads guilty (to the main charge or a lesser one), or the prosecution drop the case. The argument, therefore, says that if all cases were fixed, then there would be many instances of the Crown Court sitting around without work.
Whilst this is true, it is also true that this creates a ‘chicken and egg’ situation. In many ‘warned list’ cases the lawyers are juggled around and only get the papers the night before. For this reason, things that could be sorted out in advance are often left to the day of the trial.
In any event, the ‘warned list’ system clearly causes great problems for the non-professionals involved in the system as well as those who make their living out of it. Defendants and witnesses have to block a week or so out of their diary knowing that at 5pm there could be a call to drop everything and go to court the next day.
Sometimes, very rarely, things go smoothly and the case goes from PCMH to trial without a hitch. Most often, something goes wrong and in this case, as in so, so many, enter the CPS (Crown Prosecution Service).
The rules of the game are clear – the Prosecution have obligations to justice. And this includes giving the defence all the evidence that they seek to rely on, as well as any material that they have that may help the defence.
In this case, as in almost all, the CPS had not done what they were supposed to have done by the date of the PCMH. So, further orders were made for them to serve material on Mr K’s lawyers.
Did they comply with this? Did they hell. Is this a surprise? In short, no. The CPS has an abysmal rate of compliance with Court orders – officially 23%, but in reality much lower (when you factor in general directions set by Parliament). This should be a matter of outrage – if a private business had this level of service, then it would go bankrupt in weeks. As it is, the culture has arisen of this being the norm and is constantly excused. It’s not helped by the fact that there is, effectively, no sanction for this.
Here, the case had to be listed three times to get the CPS to do their job properly. Running a Crown Court is not cheap (figures given are generally between £3,000-10,000 per day) and in this case there were three wholly unnecessary Crown Court hearings.
Another consequence in this case was that the ‘warned list’ period was pushed back due to the CPS failures. The defendant and witnesses, who had blocked out a two week period, were caused further disruption.
The Court gets involved
The moving of the warned list dates caused further problems. Twice in the summer the case was called in for trial in a date when it was no longer in the warned list. Both times the complainant attended, expecting to give evidence, before being told that the case wasn’t happening. Fortunately for Mr K, on one occasion the court was contacted the night before and the error pointed out, so the case was adjourned.
The case was stood out and went into a third warned list in November. It was not used then, and so everyone came back to Court to have a new date given. One wonders why, given the power of modern technology, this couldn’t be done via the internet (or even the old-fashioned telephone). But in any event, another two week period for the defendant and witnesses to put their life on hold went past then.
Fortunately a ‘fixture’ was given – a fixed day for trial in February. This obviously makes life easier for everyone. However, it was not that straightforward. The lawyers, the defendant, the witnesses and the police, all turned up for the trial. For some reason, there were not enough jurors in Court. We waited around all day before being sent home for the night. The same happened the next day. As to why there were not enough jurors? The official reason appears to be down to other cases overrunning unexpectedly. The more cynical at Court felt that it may be more to do with making the stats look better.
The delicate question of money
Mr K is on legal aid. He elected to have his trial in the Crown Court. This can have serious consequences for his lawyer. If the case does not proceed to trial, for whatever reason, his solicitors will received a flat fee of £362 and his advocate will get £194. For example, if the case finished on the next occasion, then there will have been nine hearings, nine days in court, in other words, £21.50 per day. The cost of travel, about £5.00 each time is not included, so already that’s down to £16.50 per day.
Of course, a client may expect work being done, there are many hours by way of preparation and now the law requires various documents to be drafted. Say, as a conservative estimate, 15 hours. Add to that the 9 court days at, conservatively again, 6 hours a day, the total is 69 hours. This is £2.16 per hour. Now, you may not feel pity for lawyers, but perhaps ask yourself this – would you feel confident, if you were a defendant, that you were getting a proper service at £2.16 an hour?
But if Mr K had looked at that and decided to pay privately, not rely on legal aid, should he? Even if he wins, or it’s decided that the case should never have been brought, he won’t get his money back from the government or the CPS. What if DNA evidence showed him to be wholly innocent? Nope, nothing – no refund and you’ll be lucky to get an apology. Maybe, like most people, he couldn’t afford this.
This is not an aberration. This is not an unusual case. The facts of all cases are different, but this sort of thing is commonplace. The worst thing is that discussing the above set of facts in the Robing Room, there wasn’t disbelief, or outrage, but wry amusement and then tales of other cases that would top it. It is unacceptable. Whatever the truth of the matter, four times the complainant came to Court, ready to give evidence, three times all parties had to come to Court to get the CPS to do something that they should have done before, twice the case was delayed because the Court didn’t have jurors. It could be noted that not once was the delays caused by the defence.
The system is a human one, run by humans, and humans always mistakes, everyone accepts that. But this is not an accident or a slip up in one case, it’s one example of many thousands of a systemic failure.
The natural reaction on being thrice told to go away and come back another day for £15 is ‘sod it, I’m out – keep it’. But we do carry on. On 19th February, Damien Green gave a speech about reforming the Criminal Justice System. These sorts of initiatives are like Skodas – you see them a couple of times a year, and they invariably break down after a couple of months – not because of the particular terrain, but because the basic design is flawed.
What Green misses, presumably intentionally, is that the justice system is facing a far bigger problem and that is a chronic lack of funds. The idea that he can come in, whilst money is being taken out of the system, re-arrange things and, hey presto, things will work, is fanciful.
You can have all the CPR you want in the world and a new ‘Stop Doing Justice!’ initiative every week, but it’s papering over the cracks. At some point we will have to decide if we want a system that works properly and, if so, it needs either more money being spent, or have far fewer prosecutions. We can’t have it both ways. We are told that British justice is the best in the world, but telling ourselves that doesn’t make it true. And it’s not, not any more. The criminal justice system is falling apart. It’s being held together by the goodwill of the people involved, and even that won’t last forever.