Despatches from the Disclosure Battle Front.

The campaign to highlight the lamentable failure of the Judiciary and HMCTS in enabling or facilitating disclosure abuse gathers pace as more examples are exposed to view. The willingness of some courts and HMCTS personnel to frustrate the law and criminal procedure rules has reached scandalous proportions. This is now a daily occurrence.

Sadly it seems there are no subterranean depths to which some courts will avoid descending to in their apparent enthusiasm to tilt the scales of justice against the defence.
Forgive the insensitive analogy, as I do not wish to be in any way personally offensive but some courts behave like patriarchal figures encouraging abuse within the criminal justice family.

We have become like the old Soviet Union with a superficially attractive criminal code that the judicial establishment ignore.
If the legal and political establishment do not like the rules providing for fair disclosure they should be honest and argue to change the law not subvert it in a cowardly underhand way. Is this an inevitable consequence of a career structure that militates against real Judicial and civil service independence from the Executive?
Not only do the Courts increasingly fail to deal with these issues but often in their anxiety to let the Crown ‘off the hook’ they ingeniously find ways to blame the very lawyers bringing to the courts attention CPS failures. Sometimes this is accompanied with unwarranted rudeness and discourtesy and bogus criticism displayed to defence advocates in front of clients and their families.

My own recent example of the court failing to deal with the almost total absence of evidence until the day of the trial was this:
At the CMH court ordered service of evidence by a certain date. The Client came for an appointment and was informed could not be effective as no statements served. We sent 2 chasing e mails. Then with no response we wrote to the court asking them to list for a mention and copied the CPS in this. No response from CPS or court.
The day before the trial I spoke in person to a CPS lawyer at another court who kindly wrote to her own organisation (CPS) requesting service that day. No response from CPS but the court in the late afternoon evening court informed us these matters would be dealt with 'prior to the trial.’.
At the trial, with no evidence served. (Streamline file only at CMH), saw client and mum about having issues relating to their alerting the police to the existence of nearby CCTV which they said would clear his name. Client and family appalled at not seeing the evidence until the last minute and it became apparent they had enquiries they wanted us to make.
In court I said I oppose an adjournment and under S78 and CRpr 8.4 any reliance upon evidence not disclosed prior to today. I rejected the clerk’s invitation to sneak off into a corner to obtain rushed instructions on evidence served today. My client and his family I said would see it for what it was, a blatant attempt to rush the defence after the Crown have had months to get to this stage.

I recited the history and the fact the IDPC should have been served on day 1 and not needed all this chasing by e mail. I pointed out that we needed to see not only the statements but the schedule of unused and we had been denied investigation via the DCS and S8 application route.
My client and family would never willingly accept the risk of accidental conviction because they and their lawyer had not had the opportunity to prepare the case properly.

I quoted R8.3 and the new R8.4 preventing reliance upon the evidence if not served and adequate time then needed to be given to consider any late service by the defence. I referred to R. v Boardman (David) [2015] EWCA Crim 175; where the court of Appeal (Sir Brian Leveson PQBD; Andrew Smith J; Phillips J) ‘fully recognised the pressure under which the CPS was working, but that could not be an answer if effective case management was to mean anything. In any event, it was not just the CPS which was under pressure.
The CPS said ‘I accept the CPS failed to serve the statements and they should have done but Mr Murray’s firm just can’t send the client away from their door due to lack of service and turn up here today saying they will not accept service and not get on with it now. Our witness is downstairs.’
The senior clerk Legal advisor said:
‘The defence could have carried out investigations prior to service and need not have waited for the Crown evidence. It was incumbent upon them to do so. There was fault on both sides as of course the evidence should have been served, but the court, although copied into the e mail correspondence did not have the staff to pro-actively chase parties and the request for the case to be listed for a mention 3 working days earlier was too late as the application should have been made as soon as it was apparent the time for service had expired. ‘
Odd that the legal advisor believed the court did not have to take action on being alerted by e mails to the delay as the CRpr's specifically provide that all 'participants' are under a duty to act. See R 1.2.2 'Anyone involved in any way with a criminal case is a is a participant in its conduct for the purposes of this rule.'

The Bench itself (which I knew well) did not make any criticism of the defence but declined to hear the case or exclude the missing evidence and simply adjourned saying for 'Mr Murray and the Defendant it would be unfair – as evidence was not served until today to hold a trial today.’
I was not treated with discourtesy although it was a somewhat stressful hearing. I will return to the issue of the timing of applications for a mention later herein as I was under the impression these interlocutory applications were now discouraged. This view may have to be revised.
Subsequently I appealed to the profession for examples of treatment of disclosure failure by the courts and have been almost inundated.

Here are examples I have been sent:
Yes I had a trial, no statements served till I turned up on the day despite requests for statements in advance and CPS breached the directions on CMH. Also no tape of interview served. The DJ says "well you have the statements take instructions now”
I will need 2 hours I say. No you won't she says, start now and see how you get on she says , I will rise for half an hour . (This is a 2pm listing) The CPS claim that they hadn't received the emails requesting statements and apparently it was my fault and also my fault for not listing the case for a CMH even though I had copied the court into all the emails that I had sent chasing CPS. Oh and also it was my fault for not having her interview because local practice is to collect from Windsor police station (something that a local lawyer later told me was bxxxxxxs) . Her face was thunder when I came back in and said I have just served a DCS.’

Here an accusation of court complicity in CPS failures.
I have been doing this for some time. (Listing for a mention for non-disclosure) – Driving my local CPS mad. I've even had replies telling me I should be more understanding because I'm ex-CPS, as if that would go down well with my clients! This e-mail reflects almost verbatim an argument I made 2 weeks ago (add in an abuse of process argument re: destroyed CCTV). I get an identical response to that you got. I understand the CPS are under pressure but my experience is that they have given up and many of them give the impression that they don't care and have nothing but contempt for defence solicitors. The courts are even more at fault by being so complicit in allowing the failures.’

And here is a hint of the hidden cost of this failure with elections to the Crown court to avoid the poor treatment of this disclosure failure by the Magistrates court:
There’s no justice in the mags. I have been electing on everything as fed up of banging my head in mags re disclosure & my client's not standing a chance of justice. Even happens with sentences on a G plea in mags; no psr ordered and custody. I appeal. Every one successful and custody replaced with comm order. In the cc there's still rigorous scrutiny by judiciary re CPR and consideration of guidelines, totality etc. Mags actually said to me recently "We don't do law here!"’
Here is another example of flight from the Magistrates court caused by this disclosure injustice:
I recently attended a MC without any (prosecution) papers, some 3 weeks and several emails after ABH charge. CPS downloaded papers on day 1 without complainant's statement.
I explained to the Bench that I couldn't properly advise but was told that a plea must be entered. Told client to elect, refused to indicate what the issues were and insisted that a full note of what had occurred be sent to the CC with the papers.
One angry Legal Advisor and cross Bench; but I acted in the best interests of the client …’
And this on deflecting pressure onto the defence lawyers:
That sounds familiar; the CJS is unable to cope now due to the cuts. Anything but a GP and the system cannot cope. Thus blame and hostility heaped into defence sols if total surrender at the first hurdle is not forthcoming. Sad state of affairs in an adversarial system’

 
Some District Judges are singled out for particular criticism.
This experience is (evidence of) widespread madness encouraged by certain District Judges – what ever happened to judicial independence and separation of powers. My experience today was a District Judge refusing to make a direction that the CPS shouldn't disclose their hand in respect of one element of the case because the DJ concerned thought that the rules about trial by ambush only impacted on the defence.’
A frequent complaint is also the way some courts treat lawyers who are simply doing their jobs.
I think some Judges need to move into the 21st C as their arrogance and distain for anyone who dares question them or argue back is quite evident. Some struck me as pure bullies who thrived on getting away with it. I saw many instances directed both at prosecution and defence. Shocking really’.
Another example of judicial discourtesy:
As I do not get tired of telling people met one of the rudest judges last week who seemed to mistake me for the defendant. It shows that the JAC cannot root out the true personality of applicants. Been doing the job a long while and treatment like this is now rare. However rudeness and blatant unfairness has no place in the court room.’
And another suggests lack of judicial impartiality:
Some of them ought to be reminded of the judicial oath they took "……I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will." After all, one assumes they don't want to risk damning their immortal soul by breaking it!’
Sadly this rudeness is not only found in the criminal arena apparently.
It is not confined to the criminal sphere either. There are some very rude judges in other jurisdictions that seem to think they can have a field day belittling and humiliating advocates in front of clients and the other parties. As you say work place bullying.’
Even where cases are adjourned sometimes hostility follows a disclosure battle:
But you didn't see the message I got from the Crown Ct Judge after the (another) Court had adjourned it again – how very dare we get an adjournment when he had specifically directed that the trial must proceed! Called for me to provide a letter of explanation! (Frightened my secretary!)’

'Frightened my Secretary'! Very nice.
Apart from the theme of rudeness this court seemed to expect qualities of clairvoyance on the part of the defence lawyer plus the ubiquitous availability of out – dated technology! Where is that old VHS player?
I attend for trial – D in custody. Comp fails to attend. CPS applied for witness summons at 1st hearing but failed to serve it citing "falsely" recent evidence of cooperation by the comp making it unnecessary to do so. CPS state they will proceed and rely on 999 call (res gestae). I explain we have never had 999 call. Court say take it now and listen to it.
I explain I cannot do so – its 13 mins long, I don’t have a tape recorder and my client in the cells can’t hear it and give me instructions on it. Court reply: why haven’t you brought a tape recorder to court and why haven’t you asked for the tape already? It was my entire fault and (I was treated) with such hostility and disdain. I explain I didn’t know the 999 call was relevant or even existed.
I tell court that if they force trial ahead I will withdraw for being unable to discharge my professional duty to client. The court then makes the cps apply to adjourn to get her witness here. I oppose but they grant it and further remand to new trial date. Of course she didn’t attend second time despite summons now being served and case dismissed.
Court treated me and spoke to me like dirt blaming me for all the crowns failures. The fact I stood up for myself didn’t help my cause either and I was seen as uncooperative and unreasonable for doing my job.

Here is a case where CCTV of the alleged offence is not served until the day of the trial and where post charge an ID parade was held. This was also news to the defence on the day of the trial. It was disputed that a police S9 statement relating to this was served but in any event it was only 5 days previously when the law (S9 CLA 1967) allows 7 days to respond.

The court take umbrage that there been no response in 5 days. I explain the statute provides for seven. They don’t really care. The legal advisor is on the bandwagon at this stage explaining that there should have been a response and asking what we dispute.

I explain that it’s written in statute and they can’t move statute. I explain that the courts main issue seems to be why we within a time limit specified by statute haven’t responded whilst still “In time” and yet the CPS serve the evidence in this case “outside of the 28 days, and they have forgotten to call the officer whose evidence they want to adduce” and we are being told that this is fault of the defence?
The legal advisor interrupts asking why we want the officer. I explain ID is in issue and there would be questions for him on the procedure. For instance how many other officers were present and also where the defence were. I explained that defendant had a right to know. This has been served on the day of trial as said thus at short notice and there is no continuity statement adducing it. It is not admissible. I explain that S9 CJA 1976 applies and can’t be avoided. This falls on deaf ears. Mainly those of the legal advisor.
I seek to make a S78 application. The defendant gives evidence explaining that he cannot read and write. He explains that he signed whatever they asked and echoes what he told me from the dock when I was earlier afforded a short period for instructions. He explains that he doesn’t really understand but was told his solicitor would be at the viewing. (We weren’t and were never told one was taking place).

The Crown suggests it is ‘obvious’ that he knew he didn’t want legal advice. He says that this is not so. I explain that its standard procedure that The Crown serves the evidence in 28 days but that rarely happens and they cannot take the view that the procedure was lawful when it was being questioned. And it is not available through CAD/CRIS. It is not an automatic right to adduce evidence on the presumption of lawfulness otherwise there was no point in having a case management hearing. I further explain that they have heard no evidence from any one and can’t deal with the application on pure supposition.
The Crown explains that the CCTV does have an exhibiting statement which has been served today out of time. The Crown had not suggested that that statement was evidence or would introduce it. (It has not yet actually been served). The Court could not introduce that on the hoof. The bench retired to consider (With the legal advisor at various intervals for lengthy periods. I confirm I did not ask for a Cooper direction).
The bench decides that the CCTV is going in and that the defence should have chased that evidence.

I am baffled. We didn't want the CCTV so why do I have to chase it?

The bench decide there may have been a breach of PACE but the defendant didn’t ask for a lawyer in that meeting and explain that they don’t feel it is a breach of PACE that would mean S78 is operative. Therefore evidentially the Crown close their case. The defendant is convicted’

A well-known legal activist and lawyer commentator wrote:
This is a result of 20 years of political obsession with rebalancing the scales of justice, hyped up by the populist press every time there was an acquittal of someone who had an ugly mug shot and must have been guilty.
After the Judith ward case we were entitled to whatever we wanted …they continued to narrow the rules and angles until it was our turn to discharge the burden of proof’.

The above are just some of the examples collated. There are others. This is far more than evidence of a few whinging lawyers disgruntled by decisions that went against them. It would also be wrong to suggest that all courts are as unhelpful or routinely rude to the defence. That is not my universal experience or that of others: For example one commented:
I agree with the above save for a note of caution (and I hope this does not attract too much criticism for being more "dove" than "hawk"). Most of us operate in the same courts with the same benches and judges – To properly fallout with the local judiciary may not help your clients or career.
That said we should all be able to put forward an argument with strength, skill and subtlety. Different tribunals tend to need different solutions.
I consider myself quite lucky with the various members of the judiciary and magistracy I have appeared in front of over the years. Most have been courteous.’.
I would agree and enjoy most interactions with courts but I cannot pretend that I am unaware of a deterioration in some Judicial and Legal advisor conduct with some Courts so anxious to support the Crowns’ disclosure failures that they cross that line into arrogance, rudeness and hostility towards the defence lawyers who’s only fault is trying to make the court confront that failure.

Of course we are rough tough defence lawyers. But we are also human beings and entitled to be treated with respect and dignity.
One view expressed amusingly here suggests a return to a more an older more robust approach to disclosure failure:
I recall an incident one Saturday at Old St MC when a certain Magistrate (in the days before they were DJs), who shall remain nameless, who was very kind to animals but equally malevolent towards human beings, who normally sat at Clerkenwell and if you were very unlucky, could occasionally be encountered at Highbury Corner, when the CPS failed to have any papers for the cases in the list, including one or two serious overnight matters, dismissed everything for want of prosecution, he was not the most pleasant tribunal, but that was not only reserved for the Defence. Perhaps this approach, as draconian as it was, if adopted as a matter of course, would give the system the kick up the arse it thoroughly deserves – one can dream and I look forward with equal certainty to a lunar voyage sometime soon.’

My conclusions.

The real issue here, I opine, is a combination of the lack of effective and firm guidance on disclosure failure combined with a lack of real sanctions to deal with such failure. When as a defence lawyer you are fighting hard for your clients it is difficult to take a step back and adopt a lofty and independent approach. That is not your role. As a defence lawyer you have to have a point of view which is consistent with your duty to your client. If the CPS fails to disclose vital evidence it is your duty to the Court and client to raise these issues. You should not be disparaged for doing so.

However standing back from the fray, of course the Court has a duty wider than simply consideration of the stress and disadvantage for the defendant as they have to bear in mind implications for the complainant, other witnesses, and the interest of the wider community who would become concerned at cases being dismissed without the issues in the case being resolved. The rules are there to ensure fairness not to punish the CPS for incompetence however lamentable their handling of the case may be. But there must be limits to the indulgence of the court of such failure.
These issues were admirably covered in full by Peter Hungerford-Welch in his Criminal Law Review 2015 case commentary on R. v Boardman (David) [2015]. In that commentary he wrote:

It is also noteworthy that the Court of Appeal criticised the defence in the present case on two grounds. First, not alerting the court to the problem of non-disclosure sooner. Whilst listing cases for "mention" is generally disapproved of, such mentions can be useful where a party is not doing what they should. Indeed, the court makes the point that if the defence delay in taking a non-disclosure point, a judge may well reject the application for disclosure.’

That seems to suggest that Comments by the Court of Appeal which some quote as discouraging mentions, really related to interlocutory appeals to that appeal court in the middle of complex cases involving thousands of documents.
Therefore it seems to me that it would be foolish not to ask the Court to list for a mention as soon as possible as suggested as appropriate by the Court of Appeal. If this results in the court becoming inundated by applications for a ‘mention’ hearings – well – sorry about that Courts – but direct your criticisms to whom it should be directed; those who fail to disclose evidence. We will rely on the Court of appeal and we at least will do our duty.

Plus if the Prosecution (providing the case survives the mention hearing) fail again prior to the trial to disclose evidence despite clear directions to do so, then at that stage we will expect courts to deal with S78 applications sympathetically and to seriously consider excluding such evidence.

We will not have gone to all the trouble of listing for ‘mentions’ only for the courts to cravenly excuse prosecution incompetence. That would be a failure of courts to even handedly dispense justice.
I have to say that the sanctions available to the court are problematic. Of course if the judicial language or conduct has impacted on the client or perception of fairness we should consider an appeal but the aim should be to remove the need to do this.
Plus if one is subject to gross discourtesy by the court then one can always make a formal complaint. First and within 3 months complain about magistrates to the Advisory committee for the area. For Crown court judges and district judges complain to the judicial conduct investigations office (JCIO).
If still dissatisfied appeal within 28 days to the Judicial Appointments and Conduct Ombudsman (JACO). I am told (I have never done it) it is easy to complain and there is no fee. It does I am informed cause a bit of a fuss. See https://www.gov.uk/complain-judge-magistrate-tribunal-coroner.

Wasted costs orders are a ‘waste’ of time, especially if the client is on legal aid. Not only is this simply pushing public money around from one department to another but it is actually time consuming and irksome as it involves time costing whilst normally billing is simple on a fixed fee. I never ask for them and will not do so.
Professional sanctions are again inappropriate and it is hard in most cases to single out any particular individual for such targeting. Again unless there is gross and obvious misconduct (misleading the court deliberately perhaps), I simply do not think I would not have the stomach to report a fellow professional advocate for disclosure failure.
However I do feel courts, having perhaps given the Prosecution a chance to redeem their failures following a mention hearing where they fail to take advantage of such, should robustly deal with the Crown in the manner I have suggested by exclusion of evidence. But where does that leave the individuals members of the public personally concerned in the case as witnesses or parties?
Although I disapprove of wasted costs I do suggest consideration be given to setting up a compensation scheme for those denied justice. Payments from either side responsible for failure of at least modest compensation for inconvenience and also loss of earnings and travel expenses where appropriate.

These awards would be monitored by the relevant audit authorities and published publicly.
I also feel that the new Criminal Procedure rule 8.4 (in force from 01/04/2017) which in my capacity as CLSA committee member with my committee colleagues and alongside the LCCSA veteran Paul Harris worked hard to achieve, should be amended and extended. At present this focuses on service of the IDPC on the first hearing. It should be strengthened to provide that where any party is ordered or directed to serve evidence at any stage of the proceedings and fails to comply by the trial date there should be a presumption that party should not be permitted to rely upon that evidence except in exceptional circumstances and only then with leave of the court.
If anyone in the upper reaches of the legal and political establishment including the Judiciary (if you will forgive my presumption that you may read this) , does not grasp the seriousness of the problem then please look again at the lively comments by colleagues at the beginning of this piece. If you still do not wish to take action then, and with respect, you are simply not listening.

I can say with absolute certainty however, this campaign with fairness and Justice at its heart will become louder and louder until people do listen and the Courts enforce the law and rules on fair disclosure as they are supposed to do.

Robin Murray
Saturday, August 5, 2017

 

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7 thoughts on “Despatches from the Disclosure Battle Front.

  1. Reblogged this on seftonblog and commented:
    It’s sad that , as far as I know ,no NI barrister has provided a similar critique. Of course, in the Bar Library, they are terrified of the Judiciary and/or they brown nose them every chance they get, at functions, dinner parties and who knows what else? So , what chance the public, whom they serve, ever getting the real picture?

    Like

  2. I think that defence advocates need to sharpen their act. Everything is stacked against us. What I am suggesting is that greater, deeper knowledge of the CrPR and caselaw would help everyone in Court understand that you arent just whinging (which will be what some legal advisers and Magistrates and DJs think anyway).
    Greater use of judicial review might cause the awful clerks and the awful judges described above to take defence applications seriously and to listen.
    I am coming to the view that a defence statement plus stating documents to be served followed by a s8CPIA application as soon as possible is the only way to deal with this-but the advocate, perhaps having submitted a skeleton argument in advance, should have case-law to hand at all times. If a Court gets the law wrong then appeal or state a case or judicially review. Don’t just accept it-that’s what we’ve done for far too long.

    Liked by 1 person

    1. I am coming to the same conclusions and trying to get all my work colleagues on board for such an approach. Beat them with available weapons i.e. the law and rules. That should be our guerilla warfare tactics. Use the available terrain which are the laws and rules. Appreciate your comments.

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