Lord Chancellor. Wasted Costs Orders are wasted on the LAA. Change the rules to compensate those who suffer the loss.

I have been hammering away on the scandalous failure of the courts to deal with the serious disclosure issues in the courts, both Magistrates and Crown courts. If this was a face to face conversation by now your ears would be bleeding and you would probably be screaming ‘please stop – I beg you’. But I make no apology because the reputation of UK Justice is threatened by this failure which is causing major alterations and imbalance to the much celebrated ‘level playing field within the Criminal Justice system.   Retired Lord Justice of Appeal Sir Henry Brooke has been kindly supportive on the disclosure scandal and the CLSA survey stating this should be high on the list in the ‘in-tray’ of the new Lord Chief Justice. But what he also said is this;

Listening to so many of these complaints – as I have done for the last two years as a member of the Bach Commission on Access to Justice – I feel a bit like Rip Van Winkle, waking up after a long sleep to find the world he remembered had completely changed. Although we had some oddities during my days of practice in the criminal courts, we never encountered anything like this, and our arrangements for criminal justice were all the better for It.’ https://sirhenrybrooke.me/2017/09/14/failures-in-prosecution-disclosure/

For me and many of you of course we are only too awake and alive to the daily problems and miscarriages of justice in our working lives. Only last night I received this from a clearly distressed Counsel. This is just part of what she had to say:

‘Thank you for this. I was wondering how to challenge the behaviour of the chair. The judicial language and conduct has devastated my client. I have never witnessed such overt rudeness, and explicit bias before. The client and I actually had a conversation this morning whether to cut our losses at half time and let them convict her – get it over with and appeal to the Crown Court. I made it clear to the LA that I was ashamed of the CJS today. Probably not the wisest thing to say, but I was so shocked at their behaviour! Not that she gave much legal advice, in fact she gave incorrect legal advice.’

I have argued for a strengthening of the Criminal Procedure Rules (CRimPR’s) with overwhelming support in the survey for this including these proposals specifically put to participants:-

Q7 At the first hearing would you support the strengthening of Rule 8.4 of the Criminal Procedure Rules by the imposition of a presumption of adjournment to another hearing date where late disclosure places the defence under unreasonable logistical or time pressure difficulties in dealing with such that day?’

And

‘Q8. At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of Rule 24.13 of the Criminal Procedure Rules so that such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?’

Of those responding 93.67% and 96.16% agreed the proposals, respectively.

However one has to be realistic and accept that sometimes courts would balk at taking steps that would effectively terminate a prosecution no matter how egregious the disclosure abuse. Recently I argued successfully for exactly that to happen and the case was dismissed as the Crown could not continue without the evidence now excluded under S78 PACE. But that may be not a commonplace occurrence with courts anxious about witnesses on both sides being denied justice.

Although repeated collapses of Crown cases would rapidly become well known and might change the culture I wish to provide another weapon in the courts armoury to encourage the holding to account any failure by a party to comply with the CRimPR’s.

I invite the Lord Chancellor to amend the legal aid regulations-

– to compensate those mainly affected by disclosure failure in particular. At present applying for wasted costs against the prosecution when legally aided fails to compensate the firms suffering from any adjournment imposed due to disclosure failure (or any failure). It is to be frank a chore with no benefit for the suffering firm or client. This particularly so in fixed Fee Cases: You have the following choice:

  1. Keep what has been recovered inter partes and make no claim on the fund; or
  2. Pay what is recovered into the fund and claim payment in full from the LAA as normal.

Where costs have been ordered for only part of the case it is often likely that option 2 will be the best option. Unfortunately this means that you are not getting any benefit from obtaining the costs order as all your costs are being claimed from the fund in the same way as if no order had been obtained, although it could be of benefit to the client in cases where the Crown Court contribution arises if the Lord Chancellor also made a concomitant regulatory reform to achieve this. Of course the Court should be encouraged to reimburse the clients personal losses for fruitless attendances.

Otherwise we are however enjoined to obtain costs orders where possible as part of our duty to protect the fund! Except that it doesn’t ‘protect the fund’ on largely fixed fee cases. The firm suffers the financial loss of an adjournment in CRimPR’s failure induced adjournments not the fund.

Why on earth should we go through all that rigmarole to compensate the fund that generally has not suffered any loss that needs any compensation? Who has really suffered the loss on fixed fees? The answer is the firm not the fund. The fixed fee usually remains static (the clue is in the name) whilst the firm’s value therefrom is reduced each time the case is adjourned. Every hearing is funded by the firm’s overheads. The fee usually remains the same. In fact there is a good case for arguing that payment directly to the firm will in fact reduce the burden on the fund as the costs received could be offset against the fund reducing any possible entry of the claim into the next standard fee band.

The wasted costs should be paid directly to the firm. (I use the term wasted costs as a shorthand but I refer S19 not S19A costs) This direct payment will encourage the CPS to comply with the CRimPR’s, especially if calculated, as they should be to reflect the true cost to the firm, at private rates.

How can this be achieved? Fairly straightforwardly in my view. S19 Prosecution of Offences Act 1985 makes provision for orders as to costs in these circumstances.

‘(1) The Lord Chancellor may by regulations make provision empowering magistrates’ courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.’

There is nothing in the CRimPR’s that requires amending to achieve this see R 45.8.—(1)

‘This rule applies where the court can order a party to pay another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party. (2) In this rule, costs include costs met by legal aid.

(3) The court may make an order—

a) on application by the party who incurred such costs; or (b) on its own initiative.’

 

So what is required is for the Lord Chancellor to change the regulations (a commonplace occurrence) to provide that waste costs are paid to the firm. The costs should be by way of compensation to the party suffering the loss which is the firm not the LAA.

See the Court of Appeal guidance in

In re P (A Barrister) [2001] EWCA Crim 1728; [2002] 1 Cr App R 207. –

‘i) The primary object is not to punish but to compensate’

[On a slightly different point relating to counsel or individual solicitors rather than firms, S19A (not S19 to which I generally am referring) the case of R (Crown Prosecution Service) v Bolton Crown Court, Bar Council of England and Wales Intervening, [2012] EWHC 3570 (Admin) needs revisiting. Counsel was denied the benefit of a wasted cost order as ‘not a party to proceedings’. The court opined that the issues raised in this case ought to be considered fully by the Legal Services Commission and Ministry of Justice. We are still waiting].

Is this proposal for wasted costs (S19) hard on the prosecution? I feel I can do no better than to refer to a passage in in the Divisional Court in R (on the application of Maninder Singh) v Ealing Magistrates Court [2014] EWHC 1443.

The facts were that Mr Singh had turned up to the Magistrates Court with his solicitor to plead to drugs and driving offences but the prosecution did not have a file. The case was adjourned and the deputy district judge refused the application for wasted costs as he was unable to identify against whom such order ought to be directed (i.e. police or CPS?). The CPS accepted this was not a proper basis to reject the application but submitted that the order should not have been made because of a ‘mistake’ and the impact of the spending cuts on resources.

This what the Divisional court said:

‘Mr Justice Bean said: “we reject the submission that a mere mistake without repetition cannot be grounds for an order under section 19. There is no doctrine in this area that every dog is entitled to one bite…we also reject Mr Richardson’s argument based on current pressure on resources…the culture of adjournment which still plagues the criminal justice system will not be defeated unless in appropriate cases courts are prepared to use their powers to make orders for costs under section 19 of the 1985 Act.”

Could anyone have put this better? But to incentivise firms to make the application the Lord Chancellor should regulate to compensate the firms not the LAA. The present system is absurdly just moving money from one Government department to another. That will result in far more applications for costs compensation and effectively reinforce existing rules. Hopefully that will contribute in the fight to secure proper disclosure.

I am grateful for Andrew Keogh of Crimeline for his overview and slight tweaking. I hope there are none but any possible remaining errors though will be entirely mine not his.

If you have read this thank you. If you feel it is worthy of sharing please do so to help secure this modest reform?

 

 

 

 

 

 

Advertisements

WHO WOULD BE A DUTY SOLICITOR? IS IT TIME FOR A NEW STUDY?

I start this with a small anecdote relating to police station rather than duty work. This happened a few years ago, before the changed police station standard fee structure made complex cases unprofitable. In truth it is an anecdote my spouse tells at my expense. It is about 2.30am. My phone rings.

My telephone manner is not at its best at that time of the morning. ‘Yes can I help you’? I said in rather grumpy way. ‘Your son? Which police station? Can you tell me if the police said for what offence he was being arrested?’ – All delivered to be honest in a 2 am in the morning – sort of -matter of fact tone.

My spouse then heard the following change of tone and engaged interest level. ‘Really? – Murder? – How awful for you. Leave it with me. Give me your number and try not to worry’.

With only slight exaggeration my spouse claims the bedroom door had hardly closed before she heard my car wheels spinning as I hurtled towards the police station.

Now the enthusiasm is dampened a little by the economic disincentive built into the fee structure which creates a financial loss for attending police stations on lengthy cases.

It is not uncommon for serious cases to involve ten hours plus of police station attendance over several days (and nights). With firms typically paying their staff half of the hourly rate for out of office hour’s attendance we can understand the reluctance of anyone going to the police station on Christmas day or a Bank Holiday on a murder for about £8.00 per hour

I was one of the very first Duty Solicitors. My pin number is between 500 and 600. I am proud to call myself a ‘duty solicitor’. I wish to make this crystal clear. In my view there is absolutely no difference in treatment of clients by duty solicitors compared to ‘own client solicitors’. That ancient slur was always a lie and should not be resurrected in any review without being challenged. That is not to say that over-all standards are not under threat but that applies equally to non- duty and duty solicitors.
I have been thinking about police station work having read comments upon how Duty Solicitors are viewed by suspects in the Lammy Review into the ‘treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’.
I will deal with the sections that troubled me.

Many do not trust the promises made to them by their own solicitors, let alone the officers in a police station warning them to admit guilt. What begins as a ‘no comment’ interview can quickly become a Crown Court trial. Trust matters at other key points in the CJS too.

And:

‘Many BAME defendants trust neither the advice of solicitors paid for by the government, nor that the CJS will deliver on the promise of less punitive treatment in exchange for prompt admissions on guilt.’

This grim view is supported elsewhere. For example in Daniel Newman’s book, Legal Aid Lawyers and the Quest for Justice, 2014 – Newman refers to lawyers treating their clients with contempt, spending as little time as possible with them ‘and pressurising them to plead guilty.’
Newman does comment on proposed cuts to legal aid funding which could have implications for undermining access to justice. He notes that defendants reliant on legal aid cannot be denied their access to justice through inadequate representation that hinders their taking an active part in the criminal process.

He concludes by making the important point that:

“Defendants in the criminal process deserve justice, and lawyers should be made to work for their clients and properly enact adversarial principles” (p.168).

As Vicky Kemp says in her review of the Newman book

‘ legal aid reforms need to take into account how solicitors’ firms can be remunerated in a way which provides a quality service and supports their adversarial role within the criminal process.’

The reference to ‘no comment interviews’ does strike a chord with me. I do from time to time as a trial lawyer find myself increasingly puzzled by some advice to suspects to go down the ‘no comment’ advice route. You do find yourself asking why a perfectly viable defence has not been offered to avoid the guilty inference even if by written statement.

Just because a client has the right to exercise the right to remain silent does not mean tactically that it is always wise to advise such. Courts do not understand and like it unless there is a clear good reason such as the client being vulnerable or due to inadequate disclosure.

I am a strong supporter of the right to silence. I am also a strong advocate in training our police station representatives that if you can and the case permits it that giving an account more often than not strengthens rather than weakens a case. Each case depends upon its own facts and above all the characteristics of the defendant.
I think Vicky Kemp’s point about legal aid needing to support solicitor’s adversarial role is well made. The imposition of fixed fees and their erosion in value by reduction in rates produces a risk that some of those advising in police stations will take a ‘short cut’ and will advise a no comment interview to speed the process of interview rather than because of the exigency of the case. I know that will cause controversy but I am not at all sure that the standard of representation is always adequate or puts the suspect first.
The Lammy review states:

‘In focus groups conducted by the charity Catch 22, researchers identified a lack of trust in legal aid-funded solicitors among both White and BAME offenders as a particular problem. Many questioned the motives of the legal aid solicitors, who were often viewed as representing ‘the system’ rather than their clients’ interests. Offenders commonly believed that solicitors did not have the time or the capacity to advise them effectively in any case’

We can ignore this view at our peril. That is the impression many clients now have. Also the factory style ghost firm has diminished the volume available for decent firms to compensate for reduced legal aid rates and forced the latter to engage in a duty solicitor arms race just to stay in business. It should be remembered the Duty scheme is there to provide proper legal advice for suspects, not to provide employment for Solicitors.
This has been a trend in Metropolitan areas and has spread to rural areas lately. But it has been a growing trend for many years – see – A. Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994 where for example, there were concerns raised over the way in which outside of small towns and rural locations managerial influences were encouraging solicitors’ firms to manage a high volume of cases in order to maximise profit costs.
This is exacerbated by falling legal aid rates and the way they are skewed in favour of speed not quality.

This Lammy review recommendation requires comment I believe:

Recommendation 9: ‘The Home Office, the MoJ and the Legal Aid Agency should work with the Law Society and Bar Council to experiment with different approaches to explaining legal rights and options to defendants. These different approaches could include, for example, a role for community intermediaries when suspects are first received in custody, giving people a choice between different duty solicitors, and earlier access to advice from barristers.’

I agree entirely with the need for more work. I am not being territorial though when I comment that advice from barristers who are inexperienced in police station work is of questionable value. I am a strong supporter of the Bar but it is arrogant to assume that the skill set required for specialist advocacy is exactly translatable to specialist police station work. The same might be said for those police station specialists who are not specialist advocates. It depends upon the training of individuals and simply being a ‘barrister’ does by no means guarantee proper tactical advice if this recommendation is intended to apply to police station custody.
But the Law Society needs to promote access to Solicitors in the police station. This is especially so given the appalling way that many police officers and some police stations have a cultural disposition to put people off from being represented.

The Custody Sergeant will, by their rapid fire offer of legal representation, do all they can to discourage take up of representation.

Interviewing officers keep suspects waiting inordinate lengths of time and then threaten even further delay by ‘checking’ if the client still needs a solicitor.

If you need further proof of that cultural approach just look at how police attempted to circumvent PACE representation until this campaign resulted in a change in the law to address the growing abuse of police exploiting a loop hole in the PACE code whereby the police did not have to offer free legal advice outside the police station. See https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article and this outcome. http://www.clsa.co.uk/index.php?q=251

To summarise:
1. The Home Office should adopt a default position that anyone in custody or a volunteer should have contact with legal advice where the offence accused carries imprisonment.
2. The MOJ and LAA need to look at the current legal rates and the escape level from fixed fees to ensure skilled lawyers deal with serious offences.
3. The Profession needs to have a good look at itself and indulge in serious self-examination as to why many BAME and white suspects have a ‘lack of trust in legal aid-funded solicitors’. Those who represent suspects in police stations need to show proper respect, put the client first not the need to process them as if on a conveyor belt. (See 2 above)
4. In my view there is a need for an in depth study. There has been no serious study since Mike McConville and his colleagues did one in 1994. But as the admirable Vicky Kemp argues (a past speaker at the CLSA Conference) says, ‘with a greater emphasis on the lawyer-client relationship through the organisation and practices of criminal defence lawyers.’

If any one doubts the value of the presence of solicitors in police stations then simply look at the appalling miscarriages of Justice that so disfigured our criminal justice system in the not so recent past. But we need to raise our game and quality.

Lastly a duty solicitor needs to be ‘adversarial’. It’s our job. Or as I say whenever a police officer attempts to shut me down.

‘Look officer my name is not Samuel Pepys or Bridget Jones. I am not here so I can go home and later write in my diary about what an interesting time I had listening to your questions. I am here to do a job. You won’t stop me. Many have tried and none have succeeded. Now as I was saying ……”

Robin Murray
Saturday, 09 September 2017

Justice being seen to be done – early guilty pleas and Victim Impact statements.

The following is an exchange with a senior Legal advisor on the conduct of a recent Trial court chairman who raised the issue of credit for a guilty plea at the outset of the contested hearing and then, after rapidly convicting (no surprise there), refused to allow rebuttal of a lengthy ‘Victim Impact Statement’ served by way of ambush having never been disclosed. I was told not to deal with the same issues in ‘detail’ and to ‘move on’. This combination left the client feeling a sense of huge injustice.
I have written this to the senior legal advisor about treatment of my client by the Bench.

Dear Xxxxxx. Hope this finds you well.

I have consulted both within the firm and in the wider legal community about an incident at Xxxx court on ddmmyy and although some have suggested I make a formal complaint I have chosen to raise what I consider to be a training issue for the Bench. The Legal advisor was Xxx about whom I have no complaint. I have known her for 20 years, and she handled the whole incident with enormous tact skill and charm.

The first issue was the Chair asking right at beginning of the trial if the benefits of pleading guilty and obtaining credit on sentencing had been explained. I was taken aback by this on the morning of the trial so replied ‘not today as I would not wish to insult a client on the morning of his NG trial by saying such a thing.’

Diplomatic adviser -‘I am sure Mr Murrays firm will have done so before today.’

Me ‘Yes on the PETS form’
We are rapidly convicted.
But the client does not feel he had a fair trial due to Chairs opening remarks and has said so. I have some sympathy with that view as it hardly sent a message that the trial was to take place on a’ level playing field.’

I was told that magistrates were trained to ask this question at all stages of the proceedings. I appreciate the reducing discount under the sentencing guidance rules but just before the evidence is called on is not in my view a time to raise this despite the need to constant engage in active management. By the time of the day of trial I think the trial court can safely assume that these matters have been attended to.

I would be grateful if you confirm if that is the case – – that the court are trained to raise this on the day of the trial rather than simply applying the sentencing guidelines if needed because if it is the common practice I will take it up at a higher level. It seems to me to be a thoroughly bad practice. If it is not the policy then the Chairman needs to be told that without delay. In the last 500 or so trials I have done I cannot recall this being raised at the trial before.

This feeling of injustice was not helped by the sudden reading of a Victim Impact statement – not previously served (that was a breach of good practice by the CPS) and the Bench stopping my mitigation. The exchange was this

CPS reads the long VIS all about prior trouble (Non domestic) and all kept out of the trial. This was much to the client annoyance as he wanted in his evidence to go on about the Complainant putting him in a wheel chair on a previous occasion. I explained it was not a matter ‘in issue’ on this trial. (no action taken by the police).

After an eternity of listening to the endless VIS I begin mitigation. These are my notes which are accurate.

‘I want to explain the back ground from defendant’s point of view. It is not quite as simple as you have just heard. Client attended his Land lord (C) to complain about disrepair – was pushed over by him and now needs a mobility scooter —–‘

Chair – ‘I don’t think we need this detail about the previous incident.’

Me – ‘but you heard a VIS dealing with background and I am instructed to tell you it from his point of view. We kept it from the trial’—

Chair ‘I think you will move on please’.

Me – ‘Not if I cannot properly mitigate. My client is already upset about your remark about credit for a GP and now you interfere with properly advanced mitigation.’

Chair – ‘are you saying that this court approached this case in a biased manner?’

Me – No I am saying that I would like this case adjourned to another Bench who might permit me to mitigate.

Case adjourned (with client’s full approval).

It most unfortunate it came to that.

In terms of the warning of loss of credit this is normally done at the Case management hearing and although the sentencing guidelines do permit last minute pleas on the day of trial (reduced 10% discount) It is in my view wrong in appearance as it strikes a wholly wrong note of bulling and unfairness. Other than sparing the court the apparent ordeal of listening to me I am not sure what evil the court sought to prevent. I had only mitigated for about 1 minute or less when interrupted so it was not the length but the content that offended it seemed.

To be honest there is little point in legal representation if the lawyer is unable to speak or only say things that support the Crown. I expect everyone will now rush to defend the court but I have rarely had to write a letter like this. The court gave an impression that justice was not blind. That there was not a level playing field. That it was a pro prosecution court. That is how it seemed to my deeply upset client.

The interruption to my mitigation (which I had only just begun but would not have taken more than a few minutes) I found discourteous but also wrong in law.
I refer to Robert Perkins, Billy Bennett, Ronnie Hall v R – Court of Appeal (Criminal Division) – 26 March 2013.
‘c) The statement constitutes evidence. That is the basis on which it is admitted. It must therefore be treated as evidence. It must be in a formal witness statement, served on the defendant’s legal advisors in time for the defendant’s instructions to be taken, and for any objection to the use of the statement, or part of it, if necessary, to be prepared. In Perkins , the statement was handed over far too late in the process, and indeed we are concerned that some of the submissions from counsel in these cases suggest that a somewhat haphazard and slovenly approach to the time when the statement is served may have developed, at any rate in some parts of the country.

d) Just because the statement is intended to inform the sentencing court of specific features of the consequences of the offence on the victim, responsibility for presenting admissible evidence remains with the prosecution.

e) It follows that the statement may be challenged, in cross-examination, and it may give rise to disclosure obligations, and indeed as the case of Hall underlines, may be used, after conviction, to deploy an argument that the credibility of the victim is open to question.

It was clearly wrong for the Crown to ambush the defence with an non served VIS (see C above) but as I had knowledge of the clients instructions I could have coped with that if given the chance but the Bench shut me down In challenging the VIS. I wondered whether you felt this was also a training issue and if so I will leave it in your capable hands. If not I will raise it elsewhere more formally.

I look forward to hearing from you.
Best wishes.
Robin Murray

I have had a helpful reply from the regional Head Legal Advisor to that.

‘Dear Mr Murray

Thank you for your email detailing the particular problems in this case. In what is hopefully a helpful response I can say that my expectation matches your experience of 500 trials and that this incident is not typical and certainly not a consequence of advice/instructions. You will be more than familiar with the terms of Part 24 of the Crim PR and specifically Rule 24.2(2). The long established practice in courts in my areas is for the inquiry into defence advice about credit for guilty plea to be dealt with on completion of the PET form at trial-fixing stage – indeed this is a standard question and in my experience the defence are good at confirming this. Assuming that is done, the operative phrase in 24.2(2) is ‘unless already done…’ – there should be no need to repeat this exercise at the trial hearing.

I would expect my legal adviser or the court to comply with Rule 24.3(2) – this is common practice but one which is usually met with a ‘yes’. I would expect if any change of plea is to be entered on the date of trial for this to be raised with the legal adviser quietly in advance for sensible approaches to follow.

So, whilst I can see you may have identified a training need in this case, I hope you will accept this as isolated. I have copied in XXXXXXXX who will be able to offer appropriate guidance to the bench in question.

As a passing observation, we continue to see a very high rate of guilty pleas entered on the date of trial. There are, of course, a complex set of reasons for this including provision of evidence/disclosure/funding/instructions etc. The reality of this is incredibly wasteful on all of our resources and the timely delivery of justice and so against that backdrop I’m not entirely surprised that the bench on this occasion may have gone further to explore issues. I’m pleased to note CPS are working on actions in response to the CPS inspectorate report and that new efforts will be made to ensure TSJ standards are achieved.

Best wishes

Regards,
However he has not dealt with the prevention of my challenging the VIS so I have written back on this.

MY REPLY

‘Dear XXXXX

Thank you for this. I appreciate your taking action on the issue of the day of trial warning on credit for a guilty plea and you are right to draw attention to the operative phrase in 24.2(2) is ‘unless already done…’ – and your view there should be no need to repeat this exercise at the trial hearing.

May I also ask you if you noted my concern about the prevention of the free ranging Victim Impact statement being challenged in mitigation? This is, as I said contrary to the guidance in refer to Robert Perkins, Billy Bennett, Ronnie Hall v R – Court of Appeal (Criminal Division) – 26 March 2013. You will recall this:

d) Just because the statement is intended to inform the sentencing court of specific features of the consequences of the offence on the victim, responsibility for presenting admissible evidence remains with the prosecution.

e) It follows that the statement may be challenged, in cross-examination, and it may give rise to disclosure obligations, and indeed as the case of Hall underlines, may be used, after conviction, to deploy an argument that the credibility of the victim is open to question.

I do not expect a separate trial process for every issue where the mitigation differs from the VIS. But I DO expect the defence to be able to mitigate without truncation when to interrupt is in effect to distort the courts understanding of the background. I personally would be happy from an evidentiary point of view to regard this as analogous to a bail application rather than as part of the more strictly controlled trial process unless impossible to deal with in that way. One should bear in mind that many subsidiary issues have not been investigated let alone tested in court and the defence should not be expected to sit there mute whilst, in their view, highly misleading and prejudicial material is put unchallenged before the court. Some balance is required and that can simply be- as in this case- by the defence advocate saying ‘ notwithstanding the conviction, the background supplied in the VIS requires some clarification’

There has to be as the quoted case suggests a mechanism to deal with grossly inaccurate background information in the VIS which could unfairly impact upon sentence. That is normally by allowing mitigation. The alternative is for the either the defence to prepare in advance a S9 rebuttal statement to hand in at sentencing or if, as in this case the defence are ambushed in a ‘haphazard and slovenly approach to the time when the statement is served’ may have to involve adjourning for such a rebuttal to be prepared.

I hope that we can deal with this in a more sensible manner with this court in particular and all others advised that where the defence take issue with the VIS or part thereof then defence lawyers must simply be permitted to deal with these issues in mitigation and not be told, as I was, that such ‘detail is unwelcome and to move on’.

Thank you for your kind response and action taken so far.

As for last minute guilty pleas. A great many could be avoided by timely disclosure by the Crown. They will never be avoided altogether. I personally take a robust approach to advice on plea and sentencing credit but it is hard to criticise colleagues faced with hardly any evidence. The breach of law and rules facilitated by the courts has a knock on effect on late pleas.
If you have a moment may respectfully I draw you attention to this piece.

https://mintedlaw.wordpress.com/2017/08/29/interim-clsa-disclosure-survey-results-if-her-majestys-courts-and-the-crown-prosecution-service-do-not-obey-laws-and-lawful-regulations-why-should-the-rest-of-us/
The issue is not restricted to this court.

Robin Murray
Winner of Legal Aid Lawyer of the Year Award.

Winner of Kent Law Society outstanding achievement award.

UPDATE
‘Dear Mr Murray – apologies, yes I did consider the point you made about VPS when the defence wish to challenge but neglected to comment on it when responding.

The case you cite if of course itself cited within the Consolidated Criminal Practice Direction at VII F3. The CCPD deals with the point rather neatly.

I would hope it self-evident that, where controversial from a defence angle, the material within the served s9 statement which comprises the VPS, may be challenged not just by mitigation (which must of course be allowed) but also cross-examination of the victim and calling of other evidence.

It would in my experience be very rare for this to be necessary. Either the issues are likely to have been part of the trial evidence and challenged there or, following a conviction by the defendants’ plea, the court and defence advocate may consider that subjecting the victim to cross-examination will erode a substantial part of the credit for plea so as to counteract any benefit to the defendant from having the disputed parts resolved. Naturally the court cannot sentence on the basis of the disputed parts in this situation and so, probably, in rare cases where challenges do exist, he court via mitigation and advice would be more likely to disregard the disputed elements of the VPS and sentence on the other parts.

I will be pleased to include this topic in future general training items for magistrates and my legal advisers.’
MY REPLY
‘Dear Mr XXXXXXXX
Thank you for clarifying the issue and yes I think your suggestion of further training on this issue for magistrates would be very welcome. I agree broadly with your practical approach to the evidential issues. If the matter can be dealt with in mitigation then all the better. That was all I was asking. (I would wish to avoid Newton type hearings on the VIS and I agree this would rarely be necessary)
If I may say so. I think you have dealt with my issues in a courteous and exemplary way and although I have kept the details confidential I will be happy to say so to colleagues. ‘
I hope the above exchanges may be useful to any of you when facing courts who forget the presumption of innocence and also those which slavishly permit victim impact statements to be unchallenged by mitigation or evidence.

I hope the above exchanges may be useful to any of you when facing courts who forget the presumption of innocence and also those which slavishly permit victim impact statements to be unchallenged by mitigation or evidence.’

So I was happy at the outcome but disturbing that any court would show such an apparent lack of balance that requires this subsequent exchange.

And it’s goodbye to all that.

Very sadly (for me anyway) I decided to step down from membership of the CLSA committee. It is time for me to go. I do so with a heavy heart as some of the best moments of my professional life have been in service as a committee member and my 3 years as vice chair during the struggle against cuts and Two Tier.

I want everyone to know that I still intend to contribute in a personal capacity and support the CLSA, it’s officers and it’s committee from outside as much as I can. Very few people have had the privilege of seeing my committee colleagues at work from the inside. I can honestly say they are the most hard working selfless individuals you could meet and it has been an honour to work with them. They deserve full support.

For me there are some personal highlights. At quite an early stage in my committee membership I was heavily involved in a campaign with Prof Ed Cape and Richard Atkinson then a member of the Law Society CLC and backed by the clsa to address the growing abuse of police exploiting a loop hole in the PACE code whereby the police did not have to offer free legal advice outside the police station. https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article

We managed to achieve a change in the PACE code within weeks. I was actually in a CLSA committee meeting when our then President Rodney Warren interrupted the meeting with news of an e mail and said ‘Well done – you have won’. I felt I had ‘arrived’ in terms of credible committee membership. http://www.clsa.co.uk/index.php?q=251

For reasons best known to the Officers and committee members they encouraged me to write or at least play a significant part in drafting many official CLSA responses, press releases and statements under the CLSA banner for many years now. When any of these were kindly publicly praised the officers were always quick to credit me for my input which was generous of them and never sought by me. It was never for me about personal aggrandisement which is why I rarely put my name to CLSA documents so it was nice when others did acknowledge my contribution. Bill Waddington was meticulous in doing so.

Others on the committee also did and do brilliant work on a whole range of responses to official consultations without any personal recognition sought and the membership and wider profession I feel should be aware of that. These are people who are unpaid volunteers and yet serve us all with great skill and energy.

Another highlight for me was the amazing and historic ‘Justice For Sale’ meeting in 2013. This was called by me during our chairmans absence on vacation on an emergency basis when Grayling announced the end of client choice and major cuts. On Bill Waddington’s absence I told everyone (in his presence at the meeting) ‘I set this meeting up when the Chairman of the CLSA Bill Waddington was out of all communication range. He was in Thailand ‘in the bush and up a volcano’. I hope that was not a euphemism for something. Anyway he has never brought any Thai brides or ladyboys to committee meetings.’

I also chaired that meeting and I remember how daunting it was to step out onto the stage in front of over 2000 solicitors and Barristers.

But I started the meeting with something unplanned. My knees were knocking. The room felt tense. But I found myself opening with this:

‘Give yourselves and your neighbours here a warm round of a applause for simply giving a damn and standing up here for client choice and justice.’

The amazing response of applause, cheering and whooping was something none of us there will ever forget.

Also Bill Waddington during his speech delivered the best Joke I have heard at a legal conference (not a high bar I admit). He said something like ‘last week I was clearing out the attic and found myself reading some old copies of the 1970’s TV times, or the Sex Offenders Register as we lawyers like to refer to it’. Perfect and delivered in Bill’s brilliant northern dry style. Such a performer.

An old friend wrote to me and said ‘the people from my area all left the meeting and felt like singing’

People forget but the campaign led by the CLSA and the LCCSA and for a while the CBA defeated the serious attempt to remove client choice. Just think what would have happened had we failed. All legal aid Clients including your own allocated to firms on a ROTA basis. No choice. No recommendation effective no grateful client returning . Only the wealthy having choice of solIcitor or Counsel.

To many of of us the assault on client choice confirmed our worst fears about the MOJ civiil servants which is that they do not have the faintest clue about how our criminal Justice system worked. Or as I said after we had won to the LAA head honcho ‘after this why would anybody take seriously anything you say about legal aid or Criminal justice’? The reply was ‘oh I think that’s a bit harsh’. In my ear to my right I heard Bill say ‘no it isn’t harsh it’s accurate’

Nothing since has changed my mind.

That campaign led by the CLSA and allies saved U.K. Justice in my view and we should always remember that. The utter BS later spread by the MOJ that they were not really serious about the end of client choice is a lie. They were. The plans were detailed. The intent clear. We beat them.

https://www.theguardian.com/law/2013/jul/01/grayling-legal-aid-climbdown-client-choice

Then came the awful struggle over ‘Two Tier’. The attempt to restrict duty work to only successful bidders. Whilst that fight was going on I merged my own 4 branch firm Robin Murray and Co with the largest legal aid firm in the country. The new firm was also against the form of Two Tier consolidation but not against consolidation itself. This was awkward and I got a bit of personal sniping and offered to resign from the committee if they felt my membership was compromised by the merger. None of my committee members doubted my integrity or commitment in the fight against Two Tier so I stayed on despite the occasional sniping. Membership of a big firm has never affected my belief that good quality firms of all sizes have the right to survive. Poor quality firms need to be culled. What is poor quality? Difficult one that but I would not give any benefit of the doubt to proven Ghost firms or Touts.

The CLSA/ LCCSA held off Two Tier for nearly 3 years. We set up the amazing hub (the genius of Tuckers Jim Meyer delivered exactly what I asked of him) and thousands used this to respond to the MOJ consultation. In total about 15,000 responded. The largest response to any Government consultation in history apart from the Heathrow consultation. http://www.clsa.co.uk/index.php?q=Response-Hub-Transforming-Legal-Aid-Crime-Duty-Contracts-consultation.-Ends-on-15th-October-2014

The Associations had defeated the Government decisively on Judicial Review to force this fair consultation. I remember the embargoed (till the next day) news of victory coming through whist I was having a coffee outside a café in Jersey. I nearly coughed up the coffee. I was pressed for news by the committee but couldn’t tell them anything more than ‘I am having a lovely day here in Jersey and tomorrow is going to be even more lovely’. That was enough for the committee to pop open bottles all over the country. As usual Bill Waddington was on holiday and up a mountain fraternising with goats (skiing he calls it) and when he broke back into committee group he posted ‘FFS sake I feel like I have walked into a room full of drunks’! Heste Russel then one of our committee members posted back ‘you sho have Bill – you sho have’

It will always be one of the best memories of my life that evening. Just enjoying the joy of the win against the forces of darkness. Poor spouse had to put up with me e mailing back and forth all night.

Sadly the MOJ although forced to hold the new consultation chose to ignore the thousands of objections despite 98% hostility to their plans.

We tried another JR and then an appeal. Thanks to members contributions we were not bankrupted by the defeat. It took courage for both committees to litigate as for unincorporated associations to lose could have meant personal liability for a lot of money. Do you know that not one of the committees flinched. All personally took a potential risk when embarking upon litigation and all (from big to small firms) stood steady on behalf of the members. People should grasp that fact. They stood up and were counted. Fortunately although we took a hit thanks to fund raising and the generosity of many we all kept our homes. None of us could have been so certain at the outset. Remember that when making free with advice about how the clsa should sue on this or that issue.

We then were involved in the protocol protests against cuts to legal aid. Zoe Gascoyne and Sarah Grace were at the helm by then. To be honest the 3 prior years had left me exhausted and I could not face a further 2 years as Chairman so did not seek that.

The action was very difficult because it was not as united as we would have wished with disgusting opportunistic poaching undermining it constantly. Not in all areas. What happened in that action level over protocol 1 and 2 is too big a subject for this. Suffice it to for now say that at all times the CLSA and LCCSA committees acted with complete integrity. At no time was there any wish to keep members in the dark about any aspect but sometimes blurting out things could have caused damage and we assumed people would get that. Some didn’t. Perhaps we got the balance wrong. If so it was for the best not worst of reasons.

Having held off Two Tier for nearly 3 years the MOJ still tried to bulldoze it through. It amazes me when I read some comments that the litigation is ‘wot won it’ and nothing to do with the previous efforts. Look at some of the prominent litigants. Bill Waddington’s firm.(CLSA) Paul Harris’s firm (LCCSA). Does anyone think just because the MOJ caved in before their cases were tested that they would not have succeeded. Everything we predicted in our evidence about the stupidity and irrationally of Two Tier came to be exposed on contract awards that these multiple actions challenged. Does anyone think that the CLSA and LCCSA were not aware of these actions?

Of course we had tried to litigate to prevent any attempt to bring in TT. But once contracts were allocated neither association could afford to back one individual winner over another individual loser both of whom could be a member. We simply couldn’t. But were we ignorant of the issues in those cases? No. Were we hoping for HMG to get another bloody nose? Yes. So don’t anyone look at the individual litigation in isolation to the struggle that went on before. The CLSA and LCCSA were across the issues at all times but at that stage could not do anything to support one firm over another but our over all hostility to TT remained and after it was withdrawn we were glad to see the back of it and glad we negotiated a postponement of the second cut. We will know soon if like the cut for the Bar our cut is permanent. It should be.

Lately I have been heavily involved with the issue of disclosure. The efforts of the CLSA committee achieved, along with LCCSA warrior Paul Harris, another significant change in the law with the new CrimPR 8.4. See http://thejusticegap.com/2016/11/disclosure-rule-change-finally-stopping-erosion-burden-proof/

But the change is not enough and new pressure needed to be brought about. My very last work for the CLSA has been on this issue. The CLSA encouraged the setting up a survey on disclosure for the profession. It is still open for you. http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey

It was the committee who paid for this. It was the Chair Zoe Gascoyne and vice chair Sarah Grace who approved the terms of the survey. It was the committee who promoted it far and wide. It was the CLSA who published the link on the CLSA web site. I wrote about it but nothing I have written could have been possible without the CLSA behind me.

In honest truth that is so in relation to most of my work since being in the committee as a I draw upon the collective skill knowledge and input of those whom I regard as the finest in the profession. I urge everyone eligible to join the CLSA. To engage in their private members e group & FB plus twitter. To attend their conferences – next one will be a zinger – Conference theme “Disclosed: the truth about the justice system” Chester 10th Nov Prof. @EdLCape & AK @CrimeLineLaw confirmed speakers.”

The clsa is so decent and upfront Zoe Gascoyne has repeatedly invited members to attend committee meetings to have their say and view the committee at work. That is more fun than it might sound. It can be entertaining. Plus there is always the pub afterwards. I will miss it terribly but all good things come to an end. People should not be key board warriors carping and criticising without getting involved. By the way the CLSA has quite good intel about those who often cover up or try to promote their own not entirely innocent agenda by sucking others in with their unfair criticism. We do not respond normally as other people quietly work this out. Valid questioning, criticism or questions the clsa always welcome especially from paid up members. But if not a member Join now don’t snipe. Above all don’t go down the fragmentation route (people’s front of a Judea / Judean people’s front). Divide and conquer is what our enemies desire. Instead get involved with and join the CLSA. http://www.clsa.co.uk/index.php?q=joinclsa

Thank you all to CLSA members for allowing me to have the honour of serving the CLSA on the committee.

Thank anyone else who has found the time to be supportive or say a kind word about anything I have written or done.

So lastly may I thank all my recent and former colleagues on the clsa committee for putting up with me. I go on too much. I am relentless like a terminator when arguing my ground. I am sure I am a pain in the backside in so many other countless ways. You have been very patient with me and lovely to work with and I will miss you terribly even as you sigh with relief that that Murray has finally shut up.

Sadly for those who wish never to hear from me again I can’t pretend for a nano second that I won’t be writing on Social media or on blogs. I have to do something with that restless energy.

For those who reached the end of this – well done. I am grateful

Robin Murray

Interim CLSA disclosure survey results. If her Majesty’s courts and the Crown Prosecution Service do not obey laws and lawful regulations – Why should the rest of us?

The motivation for this survey was the growing anecdotal evidence that the basic right on our citizens to know the case brought against them was being subverted. We wanted to find out how widespread that was. We are shocked and appalled by the results showing how Justice is being undermined systemically by the very institutions charged with the protection of Justice.

The survey is still open and its eventual results will be sent in a restrained formal manner in due course. This will piece will not fall into that category of communication because the direction of travel of these responses are clear and frankly shocking. We have so many written contributions that I cannot do more than select a few to accompany the graphs. We will provide a link  below to all the comments and updated Graphs as the responses still are being received daily. Please read them after reading this.

We are grateful for the understandably anonymous comments from Judges and prosecutors as well as defence advocates.
What the results so far reveal is a landscape that is an utter disgrace that should be an embarrassment to those presiding over this thoroughly shabby state of affairs in our criminal Justice system. It shows an increasingly prevalent undermining of the law and Criminal Procedure rules.

Between Courts and Crown there has now been created a dangerously uneven ‘playing field’ causing real harm to the public and ultimately unless checked, our reputation as a nation for fairness and Justice. The chaos revealed actually causes the nation increased expenditure due to the cost of adjournments, with Courts apparently doing all possible to enable and facilitate prosecution incompetence in the delivery of evidence to the defence and indeed the court itself. This service of evidence is a prime function of the prosecution set out by common Law and lawful regulation within the  Criminal Procedure rules.

The Interim Survey Results

We asked a series of questions. Please remember that the results are still coming in but they are irrefutable in direction of travel, supplied as they are mainly by front line experienced trial lawyers.
The first question we asked was this:
Q.1 In your experience as a criminal practitioner have you encountered disclosure of evidence failings or late service by the Prosecution?
Here is the result which is not that surprising as mistakes do happen.

Q1

So clearly this graph and statistics are not particularly revelatory as they could include occasional failure.
But look at the next example of responses to Q2 which asks:
Q2 If you have encountered disclosure failure by the Prosecution how would you describe the frequency of such failure?

Q2

So we can see from this 90.58% of respondents describe disclosure failure as occurring very often.

Comment There is no disclosure where I practice it’s a fact. At trial no disclosure served is now usual and a DJ stated in Court that Cpr isn’t primary disclosure when i argued that noncompliance was in breach of CPR. Might be an indication as to how some Courts treat non-disclosure by CPS, at best an irritation, at worst complete disregard for the Cpr and in turn justice.’
And
Recently the lack of disclosure has been alarming. I have just successfully represented a 14-year-old boy in dated with attempted murder and the significantly undermining material about the only witness in the case only disclosed after a section 8 application was made and The reviewing lawyer realised there may be an issue over time limits. Even then the response to the request for educational records was they could not be provided as the school is closed for the summer holidays. The record when produced showed that the witness has a history of lying for attention and sympathy. Imagine if we have not had it.

These figures (90.58%) are disturbing. But not fatal if the courts deal with such failure robustly. Do they? Let us turn to the next question.

Q3. When the defence have brought the disclosure failure to the attention of the Court what has the attitude of the Court to the defence in general been?

Q3 Graph

Q3 Answer choices
Only 13.63% find the court always or usually supportive. The vast majority found the court response either mixed – 50.10% or often very unsupportive -36.28%. That is a staggering total of 86.38% of respondents experiencing reluctance from courts to deal supportively with defence advocates following prosecution disclosure failure.

How that general lack of a supportive attitude impact upon advocates is clear from the many additional comments many left with the survey.

Comment ‘I undertake magistrates & crown court work. Disclosure filings are, in my experience, much worse in the magistrate’s court. Magistrates and district judges rarely support defence in the applications for disclosure, and often moan about defence taking up court time by asking for additional court listings to chase up disclosure. Many magistrates’ courts just send the cps an email to chase disclosure, instead of agreeing to a defence listing to chase disclosure. The cps doesn’t respond to the court emails any more than they do the defence emails, hence the court can say it’s complied with its duty under CPR but in reality it’s a totally wasted exercise.
And
Comment Failure in disclosure is merely one of a set of failures that I see in Court on a regular basis that contributes towards a prosecution/court biased system. So often the Court fails to take issue with non-disclosure and merely tells the Defence to get on with it. Yet the Court will reduce the number sitting to accommodate the CPS. “Pressure of work” is acceptable to the Court from the Crown – God forbid the Defence should raise such a difficulty. The Prosecution witness needs to be found = adjournment: The Defendant is running late = trial starts. Bad character and hearsay applications by the back door before the same bench. All serve to accomplish one thing, pressurise the Defendant into pleading. Justice is not even seen to be done anymore, let alone done!
And again
Comment The current system appears to favour the prosecution. It would appear that the Courts are sympathetic to the fact that the CPS do not have sufficient resources to meet their duties of compliance however, the defence and defendants are expected to just accept that to the detriment of the defendant. Speedy Summary Justice has simply gone mad!!

and

Comment There is a culture of the courts giving the CPS the benefit of the doubt by constantly referring to financial pressures, lack of staff. This excuse that carries no weight – when you see the lack of funding and the work pressures on defence solicitors. Defence solicitors are frequently criticised in front of their clients for failing to correct the failures of the Crown, it is so bad I warn clients that whatever happens in court it is always the defence solicitors fault. The failures of the Crown are as a result of the protection they receive from the DJ’s and legal advisors my experience of lay justices is that they try to be fair until a legal advisor starts to criticise. The Courts are instructed to ignore mentions or if you persist put you in front of a DJ who doesn’t want to know

Our next question deal with how the courts actually deal with the disclosure failure. We asked:
Q 4. Do you consider that the Court deals with disclosure failure appropriately?
This was the response –

Q4
Something is clearly wrong if only 5.37% of respondents felt the courts normally deal with disclosure failure justly and fairly. Some 51.44% feel some courts do not (all courts should) and 43.19% describe these court failures as frequent. That is appallingly high.

Comment The failures of the CPS to deal with disclosure issues have caused two of my trials involving youths to collapse in the last week. Further, the Court kept refusing the list the matters for case progression which caused even more difficulties. Although when the matters were listed, the Magistrates just gave the Crown more time to the detriment to my clients, one of whom was 13 years old and of previous good character. The other client is 17 and facing an allegation of S18 Wounding, the trial collapsed because of the Crown’s complete lack of disclosure and their lack of case management. The situation is getting worse by the day and the Court assist the situation by failing to take action against the Crown.’

And.

Comment late, incomplete or non-disclosure is now the norm at the Magistrates’ Court. The CPS routinely ignores CPR directions. If we list for non-compliance, the Court invariably give the CPS an extension and we then often have to list 2 or 3 times to get what we are entitled to. Sometimes we have to go so far as submitting a Defence Case Statement to force disclosure. The Court appears powerless to do anything – a Wasted Costs Order is occasionally threatened but rarely followed through. As a Solicitor Advocate, I can say that it is completely the opposite in the Crown Court. On virtually every file, full disclosure is provided early or on time and there are very few issues. This suggests that all the resources are being channelled in one direction even though the lower courts still deal with the vast majority of cases. Something needs to be done to address the balance.’
Comment ‘Late or no disclosure is common practice here in Devon with no sanctions against prosecution whatsoever. This is not justice very imbalanced playing field not assisted by the courts or judiciary.’

 

Comment ‘The cps are under massive strain and pressure given the cuts imposed and almost without exception there are disclosure problems in every case I prosecute and defend particularly in third party material issues . The courts are entirely unsympathetic to defence disclosure requests frequently citing requests as fishing expeditions.’

Q5. At the first hearing the Prosecution are obliged under CrimPR 8.3 to serve a summary of the circumstances of the offence, any account given by the defendant in interview, and any written witness statement or exhibit that the prosecutor then has available and considers material.

How is that rule being observed? How well are the Crown complying with their duty to serve evidence before or at the first hearing to enable the defence to be the ‘early engagers’ envisaged by Lord Leveson?

Here are the results:
Q5 Graph

Q5 answer choices

So clearly on a regular basis the prosecution are failing to comply with the rules. Nearly 80% of respondents say so. That is a staggering failure rate. What is the fallout from this failure? Pleas being entered blindly with the risk of miscarriage of justice or disruption later on with vacated trials.
In addition to that is the extraordinary pressure place upon defence lawyers not to adjourn for adequate time for instructions if by chance some disclosure does turn up by rushing the taking of instructions under absurd time pressure, bearing in mind the defence is not at fault. We are punished for CPS failure. ‘How long to you need? – we shall put the case back and give you until X o’clock’. We are given greatly limited time when the Prosecution have had weeks or longer.

Comment The present egregious system is an affront to fairness and inimical to justice. It favours the prosecution and brings tremendous pressure to bear upon the defendant to plead guilty notwithstanding the absence of any relevant, disclosed, evidence. The problems are especially acute at the Magistrates’ Court where the lay justices have little appreciation of the difficulties that defence advocates face when advising a client. Sometimes I will advise the client to elect in order for a more fair hearing thereby causing greater loss of court time through jury trial and additional expense to the ratepayer. I have 30 years’ experience and the present situation is at an all-time low.

How the next advocate commenting managed to restrain themselves from physically leaping across the legal advisor to get at the Bench is a tribute to their professionalism.

Comment Memorably one occasion, when listing prosecution failures concerning disclosure and reminding the bench of what the CPR requires, the chair of the bench commented ‘we must deal with things as they are, not how they should be’.

But some may feel surely this would not happen months later at an actual trial. That would be wrong. The defence chase the CPS proactively for this or that document, media or other evidence but frequently to no avail. Look at the next graph which asked the question:

Q 6. At the trial or final contested hearing have you encountered a disclosure failure to serve documents or media required (e.g. under common law or under the CrimPR’s 24.13)obligation in good time prior to hearing.
Q6 graph

Q6 answer choicesImagine the impact this has on the client and family who ask you how things are with the trial preparation and the response is something like ‘well I haven’t been able to prepare proper cross examination of the complainant (and or other witnesses) because I have yet to be served with’ ( the witness statements or CCTV etc.) The response is ‘well that does not seem fair. – Surely the court will give you an adjournment to prepare properly? (This conversation is taken almost verbatim from a case of mine just a few days ago). I provide the link  for this for you to read  later dealing with this and other similar incidents:

https://mintedlaw.wordpress.com/2017/08/05/despatches-from-the-disclosure-battle-front/

Comment In many circumstances I find the court do try their best to ensure we receive what we need, however the CPS do not adhere to directions made and no sanctions are given. More often we find we are unable to contact any lawyers by telephone and secure emails are repeatedly ignored, ultimately puts more pressure on us. I recently had a case where no statements had been served, I made usual requests and even listed for mention but this did not stop the crown being allowed to serve the statement of a police officer that had been written and served on the morning of the trial.

 

Comment Fed up with one rule for the Prosecution and another for the Defence.

I was touched by this story of youthful enthusiasm for the law turning into possible terminal cynicism. This is what the legal establishment is doing to good lawyers with good hearts and intentions.

Comment I wrote in my school report (aged 13) “when I grow up I want to be human rights or defence lawyer to help innocent people.” It’s near impossible to do that when the Prosecution tie my hands behind my back (lack of disclosure) and the Court rather than untie me, go on to blindfold me (lack of judicial scrutiny). 9-10 month wait for a summary trial in Cambridge. No disclosure. No judicial scrutiny. I’m sick to the back teeth of the phrase “Your client knows whether s/he’s guilty or not.” Thank God for jury trials and right of appeal to the crown court.

 

And this sums up what this is really about. Not irritation at being unable to do your job but a profound assault upon  the presumption of innocence.

Comment There is a strong feeling by defence lawyers in our area that the court bend over backwards to accommodate the inefficiencies of the prosecution. District Judges comments such as “well your client knows if he/she has committed the offence” display a shocking trend against the presumption pf innocence and the duty to prove guilt is upon the prosecution.

I refer back to the responses to Q 3 and 4. The court will try frequently to bully defence advocates to cut corners rather than adjourn. Failing which instead of excluding the evidence for unfairness they will simple adjourn to give the Prosecution a ‘sporting chance’ to get it right months later and an adjourned hearing. This judicial indulgence of the CPS of course simply encourages further incompetence later on in other cases.

Comment There seems to be a culture of acceptance of CPS and police failures and sympathetic courts views based on the basis of high workload. Alas, the work passing through the courts has been comprehensively less during the past couple of years rather than more. The take-it-or-leave-it CPS approach is supported by the courts insistence on no adjournments at all costs. Justice and fairness are expressions from the past.

I am also familiar now with the premature and desperate use of defendant case statements even without these being triggered by service of unused schedules. A desperate tactic.

Comment We use Defence Statements and s8 applications to try and force disclosure but the Courts are not always supportive, and even when they do make directions the CPS do not always comply promptly. There needs to be a sanction the Courts can impose against CPS for to comply.

I am also deeply bothered by a growing number of reports of basic discourtesy shown by courts to defence lawyers who are simply asking the courts to apply the law. They are brushed away as if an irritant. There is no excuse for that at all. It is an abuse of power.

Comment Proper disclosure will not happen until the Courts enforce the law or the rules are strengthened to make sure the courts do so. Courts also need to be courteous to defence lawyers bringing the attention of the courts to any prosecution failure to disclose evidence and not facilitate and enable disclosure abuse.

The survey put to lawyers proposals to deal with these issues in terms of a strengthening of the Criminal Procedure rules. Our first question dealt with the issue of failure to comply with the initial disclosure provisions. We asked:
Q7 At the first hearing would you support the strengthening of CrimPR 8.4. by imposition of a presumption of adjournment to another hearing date where late disclosure places the defence under unreasonable logistical or time pressure difficulties in dealing with such that day?

Q7

 

 

Of those responding 96% would wish there to be a presumption in favour of an adjournment to another day if under logistical or time constraints.

It must be understood that often on the first hearing the defence may have many other of their own cases to deal with and or they be busy as duty solicitor. Often they would have requested an electronic file which could have given them a head start but these are frequently is delayed and paper files (AD or IDPC) are handed over. Plus streamlined files are often inadequate in detail or sometimes actually blank but no one has noticed. So much for the digital age and Lord Leveson’s proposed ‘early engagement’.
On fixed fees we cannot as defence lawyers afford adjournments (as some have pointed out in comments). But it is very difficult in particular if the client indicates a not guilty plea because the fixation with avoiding adjournment costs means you virtually  have to prepare trial strategy on day 1 without papers.

You only have to look at the pained expression on Court legal advisors faces concerned about the impact on their statistics to know asking for an adjournment to seek adequate papers from the Crown is going to go down like a lead balloon. And what are often the consequences of such a false economy? Frequently it is vacated trial dates if late disclosure of evidence or a schedule of unused material arrives and raises issues to make a forth coming trial date impracticable. So how much money has that saved in reality? If they can serve later why can they not serve not immediately following the charge? Presumably they had signed statements to justify a charge.
The other scandal is as we touched on earlier is the ambush by the prosecution by frequent service of often a great deal of evidence on the day of the trial. We put this question in the survey:
Q8. At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of CrimPR 24.13 so such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?
Here are the emphatic results.

 

Q8
An overwhelming view – 96.16% – that at a trial – the Crown should not be able to rely upon evidence served late which might put the defence under unreasonable logistical or time pressure without leave unless in exceptional circumstances . (Unless it is agreed under S10 CLA1967). We anticipate A S78 application to exclude based upon failure to comply with the common law, the procedure rules and under ECHR art.6 .3 providing the hearing must be ‘held within a reasonable time’

The problem of disclosure failure although not confined to the Magistrates Courts does appear to be far more acute than in the Crown Court where Crown court Judges do seem to keep a tighter rein on the disclosure problem and have more of a grip on this.
However this crisis is showing signs of spreading to the Crown court:

Comment I have witnessed the way disclosure is dealt with rapidly decline into the situation we now find ourselves in. The prosecution consistently fail to comply with their disclosure obligation. It has now become the norm to attend trial with no papers and no unused and merely be handed it on the day and told to be ready. The courts legitimise the Crown’s beaches of the disclosure obligation by failing to deal with the beaches robustly. We are now in a position where the Crown’s failure to comply with the disclosure obligation is the norm. This leads to miscarriages of justice and defendants routinely acknowledge that the Magistrates Court is no place to get justice. The failure of the Crown to comply with their disclosure obligation and the court’s reluctance to deal with breaches robustly means that increasingly there is no justice in the Magistrates. This has now crept into the Crown Court where the defence have to constantly fight to get disclosure. It is very rare that the disclosure obligation is complied with. In nearly every single case I have at the moment, approximately 50, the Crown have failed to comply with their disclosure obligation and I’ve had to list the case for a mention hearing.’

 

But at the Magistrates court where most cases (90%) and contested trials occur the courts simply allow the Prosecution to ride rough shod over the rules introduced to prevent exactly this type of poor practice.

Sadly some District Judges seem to be particularly singled out by some respondents as being particularly hostile to defendant’s lawyers attempting to persuade the court to comply with the law. Some legal advisors to lay benches cannot escape responsibility for their complicity in failing to advise their benches to follow the law.

A number of respondents indicated that where they can they will elect Trial by Jury to escape these problems and to ensure a fair trial. It is a fairly basic right that defendants should know the case against them. A right in law that is being flouted every single day.

Comment ‘Disclosure failings in the Magistrates Court are rife and CPS appears to act with impunity because the court can’t or won’t hold them to account. The impact on the defence and our ability to have a fair trial is massive and yet when we complain we are ignored or waved away. It is the opposite of justice being seen to be done.

And here another good lawyer questioning whether to carry on in a system where institutionalised injustice is rife.

 

Comment ‘Profit margins are so tight at present that the additional time spent in dealing with late or non-disclosure and a biased Court approach relentlessly supporting an underfunded CPS may push firms over the line of remaining commercially viable. My staff struggle daily in their efforts to force the Crown to serve evidence in a timely manner. The MOJ should concentrate their efforts in ensuring a level playing field and enforce routine compliance with Standard Directions. By continually turning a blind eye to this injustice serves no one, not Witnesses, Police, Prosecutors, Defence and Defendants. A root and branch reform is needed. There are some in the profession, including myself that see injustice on such a regular basis, that serious consideration is being given to exiting the profession. I find it difficult to support a process that is departing so dramatically from my natural sense of justice’

Why do we keep up the pretence that this is not the case? If the legal establishment wish to return to the days of serious miscarriages of justice let them be honest and say so to Parliament. Relevant Ministers can attempt to justify ambushing the defence with no or little disclosure. They can ask Parliament to instruct the Criminal Procedure rules committee to remove these basic rights currently provided. Then we will all know where we are which will be that there is no right to a fair trial in the Magistrates court. Of course this will increase massively the number of Trials both at summary level and at the Crown court but at least it is a more honest position than we have now – a form of Soviet Union style Institutional hypocrisy with a pretence of fairness and Justice set out in the rules which are simply ignored.
It has been directly suggested to me on social media outside the survey that the Criminal Rules procedures Committee are at serious fault.
This was the comment.

 

‘They are busy producing documents that are, in the main, first class and you would imagine that they took some sort of pride in the task and the results. However, what they achieve is the opposite of what they should have achieved assuming that they set out to produce rules that in some way defined a CJS that was both efficient and fair.
The members of that committee cannot feel pride in what they have achieved as they may have, more than anyone else, contributed to a skewed CJS due to their failure to speak out about the way in which their quite good work has been hi-jacked by a judiciary so we do not support a system that works for everyone. The CrPR committee was under a duty to speak out to explain that their work has been bastardised and that their only recourse is to begin to unwind the CrPRs to let all sides move forward relying on their wits and expertise. The only rule should be there are no rules. By taking the extreme steps they can recover the status that they were meant to have. They have so far failed to earn any status other than the authors of a manual of best practice.’

This may seem rather harsh and without wishing to appear naive I would suggest that it is more likely that the Criminal Rules procedure Committee are simply unaware of the extent to which the rules are being distorted and flouted despite the efforts of practitioner members some of whom have tried to alert the other members to the seriousness of the problem. It would be hard to dismiss such concerns now as exaggerated or insignificant. This survey reveals failure by the Judiciary, Legal advisors and the rules committee itself to maintain Judicial impartiality.

Perhaps all is not lost.
When the CLSA/LCCSA raised the issue of the failure of the prosecution to comply with the IDPC disclosure the Rules  Committee did listen and swiftly introduced a new CrimPR namely 8.4 which at least provided that the court must not allow the prosecutor to introduce (new ) information unless the court first allows the defendant sufficient time to consider it. That was a step in the right direction but it failed to deal with trials at all.

My point being though that the committee at least recognised the problem from our anecdotal reports. It moved to action and reform (albeit modestly) when confronted by the evidence.
The survey implies a tightening of the rules is desirable and sought within the terms of Q 7 and 8.
This present survey is a far more detailed critique of the disclosure crisis than previous representations relying as it does on detailed responses from all over the Country.

I do not wish to presume but I cannot see how the Criminal Rules procedure Committee can possibly and with credibility ignore this evidence. The disclosure regime is utterly broken. The reputation of the Criminal Justice system is at stake. We simply cannot continue with Courts enabling the Prosecution to continually break the law and rules. ‘The Law is not a game’. The Courts and Crown must not play fast and loose with it.

Comment. Some prosecutors seem to think it a game rather than people’s lives. Limited disclosure then a not guilty plea entered. Only then will any statements be served despite them being easily available earlier.’

Let us return to basics. In the current statement on the ‘objectives and content of the Criminal Procedure Rules’ – updated Monday, 30 January 2017 one can find the intent behind the rules. It is probably a good time to remind that these rules apply to all parties including the prosecution but also the courts who are also subject to them as ‘participants’. The note can be found here:

https://www.justice.gov.uk/courts/procedure-rules/criminal/notes

Here are a few quotes from this statement to bear in mind.

‘The criminal courts bear a heavy responsibility to the community to do justice in criminal cases. Nowhere is simplicity and predictability more important than in those courts.’

You will decide from the evidence of this survey whether the current disclosure regime delivers ‘simplicity and predictability’.

‘The presumption of innocence and a robust adversarial process are essential features of English legal tradition and of the defendant’s right to a fair trial. The overriding objective acknowledges those rights.’

You will decide from the evidence of this survey if the present disclosure regime is delivering on that ‘acknowledged right’.

‘It is no part of a fair trial that questions of guilt and innocence should be determined by procedural manoeuvres.’

On that very point – I postulate this – Avoidable delay is not only ‘scandalous’ – (DPP v Picton (2006) but institutionalised delay in the knowledge of likely Court complicity is a form of ‘procedural manoeuvre’. The many comments made in response to the survey suggest this is the case. If there are no consequences for failure why would the Prosecution comply?
The statement goes on:

‘It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.’

Why was it felt necessary to provide for disclosure of evidence? For historical reasons where it has been proven there is a risk of miscarriage of justice without it. For members of the public this news item linked here is a useful reminder. Lawyers will not need to be reminded.
http://news.bbc.co.uk/hi/english/static/in_depth/uk/2001/life_of_crime/miscarriages.stm

The statement concludes:

‘The Committee, too, was not persuaded that it is just for a party to obstruct or delay the preparation of a case for trial in order to secure some perceived procedural advantage or to take unfair advantage of a mistake by someone else. If courts allow that to happen it damages public confidence in criminal justice. The new rules make it clear that courts must not allow it to happen.’

We all know this of course applies to defence Lawyers and as predicted by Andrew Keogh of Crimeline this has largely resulted in the ‘death of the Technical lawyer’ in his ‘Eldon Lecture’ in 2011. https://youtu.be/2bhMweYNF24

I am fine with that. But is it not the case that constant failure to disclose also ‘obstructs or delays’ justice? The evidence revealed here above will suggest that is so.
‘A criminal trial is not a game’ (Lord Justice Auld made this point in his Review). This is very true but it is the prosecution who time and time again are provided by the courts with the ‘sporting chance’ over their failure to disclose. This manifests in the constant adjournments allowed to the Crown and failure to sanction them. Lord Auld’s’ comment has far more relevance to the Crown than the defence now but the legal establishment has failed to adjust to the reality on the ground that is mainly the courts and the CPS who fail to comply with the law and lawful regulation.
On the first hearing, as the survey results show it is now common place for there to be hopelessly inadequate initial disclosure in breach of CrimPR 8.3. That is not a problem for the prosecutor as invariably this failure impacts on the defence who have to scurry off into a corner to take instructions if evidence is eventually served or put in the onerous position of advising blind if it isn’t served.
On the day of the trial, after weeks of chasing vital evidence if it is not served the defence seem to be blamed for daring to ask for an adjournment either for the Crown to belated obtain this or if it is served, no matter how long the Crown have taken to serve this the defence are placed in the invidious position of rushing off into a corner to take rushed instructions with both they and their client under stress of time pressure that rarely is imposed on the Crown. All this in breach of common law, the procedure rules (CrimPR 24.13) and under ECHR art.6 3 providing the hearing must be ‘held within a reasonable time’ if an adjournment is actually permitted.

I have recently commented separately (which please read later perhaps) on the performance of the Crown Prosecution Service here: WHAT IS WRONG WITH CPS LAWYERS? so will not add to the comments of survey contributors in the present piece but I do try to identify solutions as well as the problems.
I have also written before

‘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. 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 allow it to be subverted it in a cowardly underhand way.
No defence lawyer wishes to impose the stress of an adjourned trial upon their own client. It is often forgotten that largely on inadequate fixed fees it is rarely to their economic benefit for legal aid lawyers to seek an adjournment. That factor does not impact in the same way upon prosecution lawyers who are paid regardless under their salary structures.
The prosecution fail to comply with the law and rules. The Courts often do little to ensure they do and thus are responsible for the ‘epic fail’ as the CLSA survey has overwhelmingly begun to reveal. Look at the key findings above in graph form and written comments left by some (but not all) participants who completed the survey. Due to their number I could not set them all out here in this piece but the link to all comments for all to see is here and I urge you all to read them. Then decide whether or not there is the most serious crisis in the way our criminal Justice system operates. Full comments link:

http://www.clsa.co.uk/index.php?q=interim-disclosure-comments

The  key findings that the survey has, we submit, overwhelmingly established is a sorry tale of the Legal Establishment turning a Nelson style blind eye to prosecution disclosure abuse.

Would welcome further research but we respectfully suggest such would be unlikely to produce a different outcome.
We ask again the question. If her Majesty’s courts and the Crown prosecution Service do not obey laws and lawful regulations – Why should the rest of us?

Finally:

If the Criminal Rules procedure Committee do not act and with some urgency as I believe in these circumstances they are obliged to do –  (‘ordinarily, amendments to the Rules will be made in April and in September of each year, with the amendments coming into force ordinarily 3 months after that. That discipline necessarily must give way to any urgent need for new rules to be made at other times’) – then defence practitioners will have to rapidly adopt a legal activist approach to overcome this mighty systemic failure currently bringing the whole criminal Justice system into disrepute.

We will watch with interest. If we have to we will force change. We did not become criminal lawyers to remain silent when taking part in a massive fraud upon the public. The pretence that justice is blind and equally administered is no longer sustainable. We will no longer stand for it. We require immediate reform which can simply be achieved by strengthening regulation that give a clear guidance to courts to enforce disclosure rules. Laws and regulations must be obeyed and no one, not the Judiciary and certainly not the Prosecution are above them.

In the meantime the survey remains open and can be accessed on this link. http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey

WHAT IS WRONG WITH CPS LAWYERS?

Not a great deal in my view but the structure behind them seems deeply flawed. Certainly, as will be revealed very soon, their constant disclosure failure is causing mayhem in the Criminal justice system. But in my view that is not the fault of the front line CPS advocates.  
Is it underfunding that’s the problem? Partly but we are all underfunded when reliant upon the Treasury.

I have been informed directly and indirectly that some CPS advocates may be under the impression that this survey –http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey– implies criticism of CPS advocates with some regarding this as unfair or unwarranted . In fact one of the ambitions we have for the survey is actually to support CPS lawyers not undermine them. I count many prosecutors as work place friends. We are often united or sympathetic when facing together common enemies be it awkward benches or difficult witnesses. There remains a strong fellowship among most trial  lawyers and mutual respect. 

The CPS however are let down by poor structures and policy decisions by Management and HMG. They are not personally to blame when dealing with the consequences. 

This is what a friend who until recently was a CPS lawyer said to me:

‘’You’re right. It is not just about resources.

When I left the CPS it was a shocking shambles.

‘Dedicated and highly skilled people driven into the dirt by mediocre management, targets and unrealistic processes and priorities.’

Also, we were in fact underfunded.

As are the defence these days, if you ask me.’

I knew this prosecutor to be a dedicated CPS lawyer.

In fact I often feel sorry for the prosecutor (despite the overwhelming support they have from the court). They are almost powerless as trial advocates in terms of tactical decisions even when faced with the realty of a hopeless case. They are treated disrespectfully quite often by those employing them. They instruct counsel who can see it is a hopeless position but do not allow them to drop the case.

At trials in the Magistrates court the CPS often instruct local junior counsel. Some very good and capable Counsel. However despite what Counsel advises from the court room the remote person on the end of the phone almost always says ‘carry on regardless’ which sounds like a comedy but is more like a tragedy.

It seems the CPS as an institution would rather lose a trial than withdraw it on the day. All statistically driven so they can blame the Bench if they lose rather than concede defeat no matter the embarrassment to the poor trial advocate or damage to the reputation of the Service. It is horrible to see decent Counsel treated as if their ‘on the ground’ feel for the case is meaningless. We go on to win usually.

Solutions?

1.Look at pay structure 

So the best advocates get paid the most not the longest serving. I know of utterly useless advocates ( I make no claims of superiority ) who get paid twice more than more recent and better able recruits to the CPS. The pension arrangements are not what they were and the Service will not thrive until this is remedied so the best are paid more from scarce resources that need to target them not the incrementally higher paid due solely due to long service. This will restore pride with appropriate financial rewards.

You see supervisors monitoring awful CPS advocates and yet the tick box approach leaves them in place. That is not to say some defence advocates do not leave a lot to be desired but that is what happens when remuneration is suppressed for years. I am amazed at the dedication of the skilled and committed lawyers that still serve criminal Justice with distinction on both sides.

2.Restore file ownership.

I’m told there IS file ownership of all anticipated NG cases. Really? Why is it then no one can ever seem to answer our phone calls and e mails? I appreciate sometimes the defence fall down on this but nothing like to the same extent.

3.Restore independent of decision making to the prosecution advocate.

Bring back CPS advocates with some degree of independence and decision making autonomy after defence make valid representations. This will save money and reduce the risk of injustice in the long term.

I am told that ‘all the prosecutors I know will flag up whenever they thought something was wrong’. But trial advocates are overruled constantly. Even if the call is made.

Getting a call by the advocate to be made or referred back at all is an achievement in itself. Usually at best you get greeted with the dismal mantra ‘you can write in if you want to’ when we all know how soul destroying and fruitless communication with CPS is now.

The other stock answer often now is a shrug from advocate and the usual throw away line ‘sorry it’s already been reviewed.’ with an implied/expressed shrug. This treatment of defence representations results in not guilty pleas being entered and trial dates fixed with later discontinuance or vacating a fixed trial date for plea or acquittal.

I don’t think the standard of the CPS review is anything like as thorough as it used to be. I hate people going on about the ‘good old days’ but they were better than this. Long ago it feels like the CPS would listen to representations in good time and act on them. Perhaps I am defective in past recollection. This is no longer the case as most Crown advocates rarely are empowered to make decisions. I would understand this in a complex case i.e. The need to refer – but it is now absurdly difficult to get even obvious decisions made.

The majority of CPS lawyers are talented grown up individuals so why on earth are they not treated as such? THEY are the lawyers in the ground. They have an immediate feel for the case and are in the moment. Trust them to react to events. The status of trial Crown prosecutors needs enhancing in terms of remuneration and in terms of responsibility. There needs to be an end to some remote apparatchik dictating to the trial lawyer what should happen in a case they are not dealing with. We need the CPS trial advocate to be empowered to say ‘look I am the one with responsibility right here and now and this is my decision. I will happily seek your opinion but it is my professional responsibility and that means I have the final say’.

The CLSA survey is NOT NOT NOT anti CPS. We hope to change things so CPS advocates can feel proud again. I am not sure many now do. All can have say on the disclosure. See link above. Some prosecutors already discreetly have. If indicating their employment status prevents disclosure of ID numbers for them and the Judiciary we make exceptions and the link to the survey is at the top of the article.

Many thanks to those excellent CPS lawyers who engaged with me in person and on social media prior to my writing this short piece. Without condescension, you are in the main good people serving justice and you deserve better than the treatment you are currently being subjected to by your employers – the Government. See you in court and don’t forget to bring the evidence!

Robin Murray

25/08/17

The survey on disclosure revealing widespread abuse and disregard for Law. Help end this scandal now

We need you all to hit those e mail address books, share and Tweet. Chat to colleagues.
We need a swift powerful campaign and a strong message to HMG that we will not tolerate any longer this disclosure abuse by the Prosecution and the Courts. The results reveal an absolutely shocking picture. We knew it was bad but this survey is revealing a horror story of law and rules being circumvented. It’s a disgrace.
It takes under 5 mins to complete and have your say. Do it people. Fight back.
http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey

URGENT SURVEY INTO DISCLOSURE FAILURE 

It is very important that everyone who is a criminal practitioner completes this survey into prosecution disclosure failure and failure of the courts to enforce the law and rules by holding the prosecution to account. Please send this link to every lawyer you know be they solicitors/ILEX or Counsel. Send to your firm an others. Send to your chambers and others.By this survey we will confront the legal establishment with the reality of what actually is happening with huge cost to Justice and the public purse. 
The Government cannot have it both ways. If they insist on compliance by the defence with the law and the Criminal Procedure Rules they must ensure compliance by the Crown and deal with the Court failure to hold the Prosecution to account on disclosure. This is not a technical or 'nit picking' point but goes to the heart of our Justice system. 
The rules are there to ensure fairness and efficiency. They are there to maintain balance. It is the right of all citizens to know the case against them when prosecuted. Disclosure should be full and timely. The rules state that. To be meaningful the courts must begin to give effect to the rules.
Further the rules need strengthening to ensure the courts no longer avoid enforcing them. If they are not strengthened the courts will continue to facilitate and enable disclosure abuse thus bring the laws and rules into disrepute.
This survey we hope will provide such overwhelming evidence of the system failing that the pressure for reform will become irresistible and failure to act clearly exposed and shameful to those who will not listen. 
This is your chance in this area to change the course of legal history and to engage in beneficial reform. Please click on this link below. 
http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey but also send it you people in your e mail address book, your friends on Face book or tweet the link on twitter. Maximum participation adds weight and makes the campaign for reform unstoppable. We can do this. We shall prevail. We will turn the tide against the erosion of justice.

Robin Murray

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

 

DISCLOSURE DISCOMPOSURE

 

It is quite hard at times to maintain composure in the face of constant disclosure failures by the Crown. I have campaigned on this issue and written on this subject a number of times before. See http://thejusticegap.com/2016/07/kafkaesque-courts-complicit-prosecution-disclosure-failures/ and here: http://thejusticegap.com/2016/11/disclosure-rule-change-finally-stopping-erosion-burden-proof/.

Some progress has been made as a result of the CLSA campaign not least by insertion of an additional CrimPR 8.4 which came into force on the 3rd April 2017 which at least prevents the Prosecution relying upon any introducing documents or information that has or have not been first served or made available to the defence, plus the court itself must not allow (my emphasis) the prosecutor to introduce that information unless the defendant is allowed ‘sufficient time’ to consider it.

I would like to be able to say that this has caused a major change in conduct by the Prosecution and the Court but this is not the case. Recent reports reveal how poor the disclosure practice remains at all levels. See the shocking failure rates on disclosure revealed in this report on larger volume cases at the Crown court for example in this recent inspectorate report on the quality failures on service and selection of unused material : https://www.justiceinspectorates.gov.uk/hmicfrs/publications/making-it-fair-disclosure-of-unused-material-in-crown-court-cases/.

But at the most basic level the problems are just as profound. In the first place the new CrimPR 8.4 providing for the most basic requirements for initial disclosure is still being flouted daily by the Prosecution and indulged by the court. To remind us – what are the basic requirements? They are set out in CrimPR 8.3. There must be served upon the defence (a summary only if in police custody but otherwise):
(i) a summary of the circumstances of the offence,
(ii) any account given by the defendant in interview, whether contained in that summary or in another document,
(iii) any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,
(iv) the defendant’s criminal record, if any,
and
(v) any available statement of the effect of the offence on a victim, a victim’s family or others’.

When must these be served?
‘(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—
(a) as soon as practicable; and
(b) in any event, no later than the beginning of the day of the first hearing.

In practice and in many cases nothing of the sort happens. Directions are then made on the Case Management Hearing that the prosecution must serve the missing evidence (often the statement of the complainant and other witnesses without whose statements being obtained by the police the charge presumably would not have been laid before the court).

What happens next? A series of dreary chasing e mails by the defence (if the defendant is represented) to the CPS, pleading for service of the basic evidence. At the time of writing this piece I have a trial in less than 1 working days’ time where we have had to cancel an appointment to take instructions due to lack of any evidence other than a brief streamlined case summary. We have repeatedly chased. The court failed to answer our request to list the case for a mention. What will happen is that the court will switch all the pressure to the defence by asking ‘how long to you need us to put the case back for?’ It will suddenly become OUR problem. It will be the defence ‘delaying the court’ or causing an adjournment. Well I for one have had enough of this shabby treatment. What can we do?

Here is where the courts have mostly been consistently unhelpful. I appreciate that the court must weigh the needs of the witnesses and ‘complainant’ carefully. (See what I did there? I stubbornly but correctly refused to refer to complainants as ‘victims’ prior to the burden of guilt having been established by a verdict.) But until the courts more strictly enforce the CrimPR’s nothing much will change and it is that which causes delay through unnecessary adjournments. You have decisions like those in In DPP v Gowing (2014) 178 JP 181 (the Divisional Court), Brants v DPP (2011) 175 JP 246 and R v O [2011] EWCA Crim 2854 which took the view while proceedings should be efficient and expeditious, ‘the power to stop them should not be used to punish the prosecution!’

Not all courts have responded poorly to the increasingly appalling disclosure failures. The tide may be turning at least at a higher level. Here are some useful recent cases and also principles to cite:
1. R. v Boardman (David) [2015] EWCA Crim 175; where the court of Appeal, according to the Case Analysis on Westlaw, (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. If defence lawyers on a fixed fee had to make repeated applications that reduced the rate at which they were remunerated. Further, the court lost days which could have been used to try other cases and court resources were expended. It was not in the slightest surprising that the judge became exasperated with the prosecution’s conduct’.
Three cheers for the court!

2. Following on from Boardman in Salt [2015] 1 WLR 4905, and at [2015] 2 Cr. App. R. 27 the Court of Appeal although in that case ruling in favour of the Crowns appeal against a stay of prosecution at first instance, made a point of saying this: ‘It was where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute that a court should make an order which would have the effect of stopping the proceedings.’

So pick your battles well and cite those Boardman and Salt cases I would suggest. Each case will of course depend upon its own facts and those include facts as to just how appalling the disclosure problems have been and how prejudicial the continuance of the case would be in which case the court should consider an application for a ‘stay’ or a S78 PACE application to exclude the evidence.

3. It will also be open for you to oppose any application to adjourn not only citing the CPS v Picton case (2006) 170 JP 567 (as the fault will have arisen due to the failure of the Crown) but also the basic principles of the ECHR such as under ECHR art.6 .3 providing The hearing must be ‘held within a reasonable time’. What is reasonable depends on the complexity of the case, its importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question (i.e. when the offence was committed and when the trial takes place).

Article 6(3) also provides the right to have ‘enough time and facilities to prepare a defence’ and further by 6.4 the applicant must have a real opportunity to present his or her case or challenge the case against them. This will require ‘procedural equality’ and generally requires ‘proper’ access to evidence relied on by the other party.

What this means in my view that those courts who simply offer to put the case back temporarily are, except in the most simplest and basic evidential case, wholly wrong to expect Lawyers to find a corner of the court to take hurried instructions for a trial later that day. The Prosecutor should recognise that and should be the one applying for the adjournment not the defence.

This applies quite beyond initial disclosure but to all outstanding evidence the prosecution has failed to serve in good time prior to the Trial. Common law disclosure rules govern the prosecution’s disclosure duties at any stage of the criminal process when the disclosure regime under the Act is not engaged.

To summarise: It is time the defence became more confident and assertive in demanding proper and timely disclosure. We need to embrace our inner ‘lawyer activist persona’ and make a huge fuss whenever we and our clients are treated this way. Let us keep the Crown to their time limits. List the case or at least alert the Court when they fail. Nothing I have written here is meant as an assault upon any friends we have in the CPS. They are coping they say, with limited resources. That may be so but our personal sympathy for them does them no service whilst we allow them and the courts a free pass on timely disclosure of evidence despite the rules requiring this. CPS resource issues are not our problem and nothing will change if we let these standards slide and the rules be flouted routinely.

Robin Murray
Monday, 31 July 2017