Just when you thought the CJS couldn’t sink any lower…………

Just when you thought it couldn’t get any worse. When you thought the barrel had been scraped. When you thought we had reached the bottom of the bell curve.

Clang, the bottom has been struck, and the Criminal Justice System proceeds to dive straight past the bottom and is ploughing into the depths of Tartarus…

Incompetence, machination, manipulation, who knows from whence it stems but there is no doubt that the CJS has rapidly transitioned from creaking to croaked.

The chronic lack of funding over several years has led to an acute and systemic collapse of the operation of the CJS. The only thing shoring it up, the only thing stopping it from imploding in on itself, is to be found in the valiant efforts of the Court users – be it ushers, solicitors, clerks, probation staff, counsel – to put in all the hours, burning the candle at both ends and the middle, all for free; schlepping hither and yon for pro bono mentions across the country to try to keep proceedings on the rails in the face of the grotesque inadequacy and unfitness for purpose of a chronically underfunded CPS, and in the face of the tacit acquiescence of some of the judiciary and in the face of overt animus on the part of the MoJ.

I am not talking about the day to day nonsense to which we have all sadly become accustomed and inured. Rather, these are more catastrophic problems that, had they occurred 5 years ago, would have occasioned judicial ire, media outrage and condign consequences.

Last year, the CPS dragged their feet, failed to deal with issues of investigation, service and disclosure, failed signally to respond to requests, letters, emails etc in a private case in Croydon, despite all warnings related to wasted costs… Hearing before the Hon Recorder and other judges, warnings, orders, directions, all ignored and flouted.  CPS failed to get advocate even to attend some of the hearings, failed to have an advocate who had the slightest clue about the case to any of the hearings. Wasted costs applied for. CPS failed utterly to deal with the application – totally ignored (or ignorant of) the CPR requirements – wasted costs approaching £12,000 were awarded by the Hon Recorder, with the Crown being debarred from objecting, pursuant to the Criminal Procedure Rules, as they had failed to notify objection and to provide any representations within the specified time limits, or indeed ever or at all!

That trial then started, after being floated in – yes a warned list, floating serious drugs and violence case, privately funded, it was warned and floating. It took forever because the Crown had failed to get dates of unavailability from the complainant, who had exams of which the Crown knew nothing, the judge had to take ½ day mentions and sentences every day – so after 7 days, we had only progressed to 1 of 2 cross-examinations of the complainant. Then it was aborted, jury discharged because of the time taken, and the time likely still to be taken, with witness unavailability, with judicial commitments, the jury were already 2nd weekers, and could not sit into the following week. What a ludicrous waste of public time and money.

However, it didn’t stop there – the case, aborted in early May 2014, was listed for retrial in, no, wait for it….. December 2014! Representations were made, in October, to the CPS to review the case, on the strength of the cross-examination of the complainant. No response. Not a whimper. Further requests made. Nothing from the CPS. Listed to try to prompt action for mention on 8th December. Guess what? CPS instruct Counsel, with papers at court, not trial counsel, not advocate with any knowledge of the turgid history of this case. No, an entirely new individual without any instructions, any knowledge and no real papers. So the case had to be adjourned to the next day, all pro bono for me as private funding was exhausted and legal aid was in place. Back in front of the Recorder – Crown explain that they had not responded to the Representations because they didn’t have a copy of the transcript of the complainant’s evidence that had been provided by the Court in July and which had been referred to explicitly and at length in the Representations. They didn’t apparently realise that they were missing the key transcript for 2 whole months. I gave them my copy. They looked at it. They dropped the case. However many months later, however much public money later, however much stress for my lay client and his very involved, engaged and pleasant family! All after the first appalling mess caused by the CPS before the trial – as the Recorder said: they have learned, and learn, nothing!

Enough of Croydon you may cry – but another trial at Croydon, in September 2014, large(ish) fraud. Due to last 8 to 10 weeks. Silks and juniors abounding. After 5 weeks, purely by chance, it is discovered that a major tranche of evidence in existence of which neither the Defence, nor the Court nor even Prosecution Counsel (neither leader nor junior) were aware. Trial aborted and wasted costs to the tune of £300k ordered against the CPS and HMRC. Didn’t receive the same publicity as HHJ Joseph’s case subsequently but our one is due for retrial now this year.

This is happening more and more. Cuts and austerity are putting inadequate resources into the CJS and all the agencies and individuals involved are underfunded, understaffed and overworked. That is no doubt what caused both of those Croydon farragoes.

It is happening everywhere. Everywhere you go, you get tales of woe. We have to do more and more for less and less. I’ve had to fight off applications to transfer legal aid in i) a largeish fraud, ii) a major grooming and iii) a murder. That has necessitated multiple hearings at, and multiple trips to, amongst other hotspots, Liverpool. All for free and at substantial cost in terms of money and precious time! Becoming a normal occurrence all over the jurisdiction.

Then a trial at the Bailey has dragged on and on, due to late service, late disclosure and other problems that all stem from corners cut earlier on in the proceedings. This then causes major knock-on problems with other applications to dismiss a murder, a drugs and money-laundering case etc etc. The Judiciary are not always as helpful as they might be – they accept, as a given, the CPS’s incompetence and inadequacy, and expect the defence and Crown Counsel to sort it all out, save the process and keep the proceedings on the rails. This again leads to numerous mentions, further trips around the country, all for free, at great expense….

Today I am meant to be at the Bailey with my jury going back out, but another judge put in a “quick chat” mention to “touch base” in a major grooming case, that has a number of PTR, ground rules, CTL, severance etc hearings listed already. That of course was a freebie.

In a drugs and money-laundering case at Birmingham, an application to dismiss was lodged in relation to the single, one-off supply drugs count. The application to dismiss had to be administratively adjourned for logistical reasons, but the response to that application from the Crown was then followed by them seeking to add a further count alleging a further single-day conspiracy some weeks before.  At the adjourned application to dismiss, application to further adjourn the hearing, firstly as I was stuck at the Bailey, and covering counsel was not read-into the case and secondly the Crown had just added an entirely new count, alleging entirely new criminality.

That new count was only notified to us after the original date for the Application to Dismiss. The Judge at the hearing was all for pressing ahead, all of the above notwithstanding. He was apparently outraged that no defence statement had been served – albeit the application to dismiss was outstanding and the new count was less than 2 working days old. He finally saw a degree of sense and adjourned the hearing but still ordered the service of the Defence Statement, the above notwithstanding! He also ordered that the Crown set out how they put the new count. That deadline of course they missed. When they did respond it was to state that the single day extra conspiracy had been extended to a 2 month conspiracy. This all a week from the listed start of the trial (next Tuesday!). They apparently had given no thought to the preparedness for trial and the extra work now required. In addition to that, we have just had served today hundreds of further pages of banking and financial evidence.

We wrote to Birmingham CC to list the matter for a mention to sort out the realistic likelihood of a trial being possible next week. My senior clerk had to fight Birmingham List Office to get it mentioned – you would have thought they would be listing it asap if there was a risk of the trial being ineffective next week – but no that would be too sensible. So I have now schlepped to Birmingham for another free mention, caused by the Crown adding counts and serving substantial evidence days before trial!

Then yesterday, we learn that in a substantial £7m fraud at Blackfriars, the CPS has again requested an extension for the service of the case – second time, second time ex parte, no notice to us. We only find that out yesterday due to the Court notifying us of a mention for today. A mention that we need not attend, but how can we but attend to protect the interests of our lay client? So I have to arrange cover, as I cannot be there. And glad we are that we did! The Learned Judge, the Resident at Blackfriars had been misled by the correspondence from the Crown to believe that the Crown’s extension applications had all been on notice – they were not! The Learned Judge was far from happy. Explanation for the delay in service came there none, as the officer in the case was not there…. she was in New York……… It’s just a shambles. A debacle. Another free mention caused by CPS inefficiency and inadequacy!

All of this leads me to say:

Aaaaaaaaaaaaaaaarrrrrrrrrrrrrrggggggggggggggghhhhhhhhhhh!!!!!

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About utterbarrister

Long-suffering, hard-working barrister in Criminal Practice at Chambers of John Coffey QC, 3 Temple Gardens, London
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