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!!!!!

Advertisements
Posted in Uncategorized | Leave a comment

Proud to Be

Excellent as ever Jaime – agree with all you say. Proud to do what we do.

A view from the North

Dear Chris,

you probably do not recall meeting me. I am just one of a number of angry lawyers that you have met with over the last year or so. When we met in the Town Hall in Altrincham, I was very angry and you were very wrong. Not much has changed.

At that time you were still peddling PCT and restrictions on client choice. You were pressing ahead with swingeing cuts to advocacy fees. You were proud of your residency test. So I suppose one or two things have changed. You have been comprehensively and repeatedly proved wrong. You have abandoned or delayed some of your more disastrous proposals. The courts have given you a bloody nose on others.

Have you changed? Not one bit.

At that meeting you innocently told the room of criminal barristers and solicitors, “I have been accused of saying that barristers are fat cats…

View original post 319 more words

Posted in Uncategorized | Leave a comment

The Decline and Fall of the Criminal Justice System

Readers of this and other better blogs know all too well that the CJS has been crumbling around our ears for years now. Successive cuts to the infrastructure, fees, interpreters, Prison Service, general outsourcing have all contributed through successive governments to a system that is held together by the joint professions dwindling goodwill, sticking plaster, a hope and a prayer.

We all have horror stories of the inefficiencies racking up cost and expense, both in stark monetary terms and also in terms of time and consequential “indirect costs”. Be it the ludicrous prisoner transport costs – the “contract time” to get prisoners from one particular prison to Winchester CC was – wait for it – 15.30. Yes, you read that right – so long as G4S or Serco or whichever got the poor lag to court by 15:30, they were within contract and no penalties accrued. Bradford – murder trial before Red Judge – “contract time” for those prisoners – 12:00 – because that is conducive to a smooth-running, timely and efficient trial…..Not!

Cases delayed or stood out because no interpreter or the wrong interpreter – yeah well Spanish and Serbian both start with the same letter I suppose….

Prisoners not brought.

CPS not produced papers, documents, exhibits, files; not warned witnesses.

“Over-listing” – a new one on me. It’s like the old US airlines “over-booking” process. Too many cases not enough judges and, wait for it, not enough sitting days. Yes, the MoJ has given courts a budget of sitting days – based on last year’s figures – because we all know that these things are stable, static and predicatable. See the R. v. Coventry CC ex p McCauley CTL judgment of the then President of the QBD, now LCJ, Lord Thomas, on that topic.

We all have experience of trials dragging on for many many extra days because the Judge has 1 or 2 (or more) hours work in his court each day – mentions, bail hearings, POCAs, sentences etc – that have to be fitted in before or after the trial hearing for that day.

Well, I have just experienced a nadir of the system in a certain Crown Court South Eastern Circuit, which I shall refrain from naming for fear of incriminating Croydon CC, oops….

This case was not a particularly grave, nor particularly complex case, but neither was it at the bottom end of the spectrum – robbery and drugs, with cell-site, contested ID procedures etc.  The wrinkle was the my defendant was not the recipient of a Representation Order, and his family had mustered the funds for a private instruction.

Things had not run smoothly for months – the CPS had failed signally to serve or disclose substantial tranches of significant material. There were warnings of wasted costs applications – no difference. Three mentions were needed – with due warning, the first two of which resulted in a response let alone a satisfactory one. Indeed, the CPS managed to fail to instruct counsel for the first before the Recorder, and an unedifying scramble to find a CPS in-house available for a ritual kicking eventuated.

Finally we get some if not all material and we are trial ready….ish. It’s in a warned list, notwithstanding the private instruction – how that is meant to play out is anyone’s guess… We are given a fixed floater listing on the Monday with another two cases. None can get a court – indeed a trial actually listed in one court, with a heavily pregnant key witness, is stood out as their court is overrunning massively in a POCA.

Back the next day with an assurance of a court, with a clean 11:30 start – we’re only good for 3 to 4 days so we should finish in the week, just….

Ha! We get into to court about 12:10! Legal argument in the afternoon. Ruling the next day. But new problems – the Learned Judge (a very able and fair tribunal) has half a day’s work on Thursday and again on Friday, with a latest rising time of 3 pm. Monday is also lost entirely to “other work”. Also the officer in the case, the only reason the case is 1/2 way ready to proceed, establishes what the CPS have signally failed to – the complainant has numerous Uni exams – can’t be there Thursday, and various days the following week…

So, we get our ruling on Wednesday, eventually sort out a panel – there is a struggle to find a panel of jurors. Eventually 15 are secured – albeit they are ALL second weekers, and 3 or 4 certainly cannot sit past the following Saturday – but hey we are all certain we’ll finish in 9 days….. more fools us. The Pros opens after lunch but with the complainant unavailable the next day, there is simply no time even to start his evidence. So we adjourn lock stock and barrel to Friday for 09:30 to rise by 13:00.

We duly attend in good time but the complainant is late – we start at 10:10 – and only get Chief and one cross-exam before we have to rise ….. until Tuesday.

All the time, the defence is privately funded, and the costs and delay are racking up – were this public expense, the same would be happening but it would be the public purse taking the hit.

Back on Tuesday – the Judge has fallen ill and cannot sit on the trial that day, and the complainant has exams the next day. There are 4 jurors who cannot sit beyond the Friday. There is simply no prospect of finishing the trial.

So we have waited around all Monday, all of Tuesday, in court for a couple of hours, much of Wednesday, in court again for a few hours, early Friday for a few hours, and then Tuesday morning….. jury discharged.

The two defendants are in custody – no CTLs but arguable they would no longer bite in any event given that a jury was sworn and a trial started….

What was the first date available to relist this already stale case? Complainant and two defendants awaiting trial already for a year; co-defendant awaiting sentence for many many months. Well a sign in the list office said that “general fixtures” were off to FEBRUARY 2015!!! I sh*t you not.

After much beating of breasts, and wailing and gnashing of teeth we were given two options – possible “priority warned list” in September – which I (instructed privately) could not do, pros probably couldn’t do and was by no means a certainty to get on and definitely not with the trial judge we just had or a fixture in mid December. Yes that’s right – another 7 month delay for the witnesses, the defendants, my defendant’s family etc etc.

It really made you want to weep. This is how low we have been taken. This is what Grayling and his predecessors have achieved. How did we let this happen? How do the press not scream this from the rooftops.

Something must be done. Something must change. There is no more fat in the system. There is no meat left in the system. It is at the bone. We are getting into the marrow now, and I’m not sure how much longer that will last…..

Posted in Uncategorized | Tagged , , | 1 Comment

BBC Question Time – Complaint re Grayling’s “easy ride”

Having seen the Minister for Injustice on Question Time, in this week of all weeks, one cannot been but staggered that not one question was put to him re the current debacle in the CJS. We need to get the BBC to get its head out of…. the sand ….. on this issue. So if you agree, make a complaint – I just did.

“This was the week the President of the QBD in the Court of Appeal expressly criticised the Ministry of Justice (Operation Cotton), in which a major fraud trial’s future hung in the balance, when the MoJ expressly conceded it had “hoped for the best” and then had to implement “emergency measures”, costing the tax payer far more than previously.

Your own Home Affairs editor, Dominic Casciani, has highlighted the issue this week. Even the Daily Telegraph has “laid into” and questioned the MoJ’s stance and conduct.

Yet, in this week of all weeks, the “Lord Chancellor” is invited onto Question Time, appears to haver, does appear – there was not one question about Operation Cotton, not one question about the ongoing Legal Aid dispute, not one question about any aspect of the destruction of the Criminal Justice System – be it interpreters, lawyers remuneration, access to justice, Judicial Review, the Probation Service, the Prison System.

One might query why on earth the LC was there if not to be asked anything about his sphere of influence? The lurking doubt remains in many minds that a deal was struck by the BBC not to ask him any questions that would highlight the plight of his department and cause him discomfort or embarassment….

Overall the reporting of the plight of the Criminal Justice System has been minimal, laconic and riven with a tacit acceptance of MoJ spin.

We expect better of the BBC. Can you please explain the glaring omission from QT of any such questioning?”

Posted in Uncategorized | Tagged , , , | Leave a comment

Ministry of Injustice, Spin, Misinformation and Downright Lies – Part 3 – now it’s incomprehensible

As I stated in Part 2 of this blog, I emailed the UKSA, who got back to me very promptly with the response below….

The Statistics Authority investigated this point as part of its investigation of these issues. It found that the Ministry of Justice published an ad hoc official statistics note: International Comparisons of Public Expenditure on Legally Aided Services (see web link below). This report concluded that that ‘at £39 per head legal aid expenditure in England and Wales is among the highest in the world’ but also described the complexities around comparing different legal systems and cautioned users about their interpretation of the results.

The latest annual official statistics report Legal Aid Statistics in England and Wales 2012-13 did not present any information about international comparability.

In Sir Andrew’s letter to Mr Vara, at paragraph 5.i of the attached note, the Statistics Authority noted that more information could be provided about the international comparability of legal aid statistics across all the related statistical reports.

Thanks once again for raising this with us.

Kind regards …….

http://webarchive.nationalarchives.gov.uk/20130315183909/http://www.justice.gov.uk/downloads/statistics/mojstats/international-legal-aid-comparisons.pdf

Anyone out there understand this? It seems to be a tacit acceptance that the claim of “among most expensive” is potentially misleading and needs to be couched with numerous caveats and other warnings, but never is….

Wonder whether this will stop Vara and his puppet-master….? Nah, doubt it.

Yours in why do we bother

Utterbarrister

Posted in Uncategorized | Tagged , , , , | Leave a comment

Goodwill Hunting

A lot has been written and discussed about our “goodwill” being withdrawn. Let us not kid ourselves, the system is still creaking along because we have only withdrawn a fraction of that goodwill.

I meant to post this at the time but had too much to do and not enough hours in the day to do it….

A few weeks ago, I endured a fortnight that encapsulates the fiscal nightmare into which we have allowed ourselves to fall.  In the Autumn of 2012, I led in a 10 week drugs trial in Preston. Sentence was adjourned to await another outstanding trial for a recently extradited defendant. For a number of reasons, that took an inordinate time. Thus, after conviction in November 2012, sentence was finally listed at the end of January 2014 – over a year later. I had to travel to sunny Preston for a con with my defendant, WA, at Preston Prison, the day before the listed 2 day hearing. So that Wednesday – a conference for free. Travel up, and hotel overnight. Thursday – Crown opening, mitigation by myself and some co-defendants. Preparation for all of this – over a year after the trial? Free. Appearance all day at Preston CC – free! I then had to hot foot it back to London on the Thursday evening (took 6 1/2 hours due M6, M1 nightmares) as I was in the Court of Appeal the next day.  My poor junior had to stay in Preston, for free, and hold the fort on Friday.

On Friday, I appeared at the CACD on a pro bono renewal of leave to appeal conviction and sentence. There was a lot of prep. Free. I spent about an hour on my feet in “argument” with their Lordships. Only to be told that hour didn’t happen because the 5 grounds of appeal against conviction (although Judge and Pros Counsel came in for due criticism) were not even arguable. Not just appeal refused but leave application refused. So Free!

The following Monday was spent preparing for a further Court of Appeal renewal hearing (funnily enough for WA from Preston) and for a further 2 day sentence hearing in Birmingham this time. So, Monday – Free.

However, as the CACD was Tuesday, the first day of the sentence hearing, and as I was No 1 on the indictment of a large multi-commodity drug ring, it was difficult. The Judge at Birmingham was understanding – as long as I sent stand-in counsel, I could mitigate on the Wednesday. This I did. So not only was I working for free on Monday in prep, but I was appearing at the CACD for free as well, AND paying stand-in counsel to travel to Birmingham and hold my brief for the day. So Tuesday – worse than Free – negative.

At the Court of Appeal, there was an issue, long presaged, of non-disclosure. Material had come to light – thus after 1/2 hour’s argument, the renewal application was adjourned with a strict timetable from Treacy L.J. as to disclosure, work, applications, skeleton arguments, hearings etc. However, that notwithstanding, my application for a Representation Order was refused at that stage. So Tuesday free / negative.

Wednesday – travel up to Birmingham for a further day of being paid nothing to prepare and mitigate for a very demanding client, in a large and demanding drugs case. Free / negative.

The case went so slowly that the judge needed until the Thursday to pass sentence. I drew the line there at the end and asked someone already there to hold my brief just for the sentencing remarks, as my solicitor would be there as well. I had a conference to attend in London (on old VHCC so at least I’d earn something in that fortnight).

So that was two weeks where my previously inexhaustible goodwill was stretched to near breaking point. What other job, what other profession would be asked to, expected to act in that way. What other job, what other profession would countenance that as a business model.

We must be barmy. Our goodwill is at an end. They can hunt for it all they like.

They are after all akin to the Berkshire Hunt.

Yours in unfathomable annoyance

 

Utterbarrister

Posted in Uncategorized | Tagged , , | Leave a comment

Ministry of Injustice, Spin, Misinformation and Downright Lies – part 2, now it’s personal, just when you thought it was safe to go back into Court…

Well well. Not at all what we were expecting when we wrote to the UK Statistics Authority – we were hoping to be corrected and shown that our Government, our Justice Department or “Lord Chancellor” would not stoop to such depths as to dissemble, mislead and obfuscate….. But apparently they have – they’ve lied, and lied and lied.

As a great friend and colleague of mine, now sadly no longer with us, would have said – liar, liar, pants on fire.

My Northern colleague has already blogged this – http://jaimerhblog.wordpress.com/2014/03/17/oh-the-lies-they-tell/ 

I have tweeted it – as has the CBA and loads more. Sadly it appears that the Press are not interested. As they were not interested in the Harrow Crown Court debacle, where the MoJ / HMCTS spokesperson seems to have lied through their teeth – see my previous blog on that subject

http://wp.me/p3ARQG-1n  .  What will it take for our fearless investigative journalists to bite on these stories? We’re spoonfeeding them the good stuff on a daily basis.

But there we go – the Statistics Authority have confirmed what we all suspected, or rather knew – the MoJ simply could not lie straight in bed.

I have one ongoing request though to Sir Andrew Dilnot CBE – one strand of the MoJ’s web of lies that the UKSA has not called them on…… yet.

The “£2bn, most expensive blah blah blah” mantra.  So I have replied to the UKSA, thanking them for their work and their correction of Vara, but asking that they consider this aspect as well, in the following terms:

Many thanks for the enclosed letter. In my request to the Authority, I also raised the concern as to the repeated assertion by Messrs Grayling, Vara, McNally et al, and I am pretty confident I would not be alone in this, that “at £2bn we have one of the most expensive systems in the world” or some variation on that theme. 

 The grave concern, that I and others have, is that the figure of £2bn is simply wrong and misleading. It is our understanding that this is an exaggeration of a previous years total cost, in full knowledge that the following year(s) will have seen a substantial fall in that cost. Secondly, it has been widely debunked that our system is anything other than right on the European average of 0.33% when all costs are factored in – i.e. when appropriate comparisons are made as to lawyer costs in an adversarial system and judicial costs in an inquisitorial system.  This disingenuous assertion is perhaps the most widely promulgated and most dangerously misleading of the many issuing forth from the MoJ’s bunker in Petty France.

 Could I please urge the Authority to build upon its important work in the letter to Sailesh Vara, and also look into, as a matter of urgency, that issue?

Can I urge any of you, dear Readers, to keep up the pressure – write to the UKSA, email them at authority.enquiries@statistics.gsi.gov.uk

Let’s get something done. Let’s get some pressure on UKSA to correct this, the most venal of lies. Let’s contact any Press or media that we may know. We don’t need friendly Press, we just need those unafraid to do their jobs and investigate. We know we can withstand the scrutiny. We know the MoJ cannot!

#saveUKjustice #pantsonfire

Yours in disgust at the MoJ, its acolytes and its press poodles.

Utterbarrister

Posted in Uncategorized | Tagged , , , , , | Leave a comment