Friday, July 26, 2013

These Rules Mean What They Say

From Bystander T To anyone who is even the most casual of observers of magistrates' courts, the Criminal Procedure Rules must be a subject that invades their consciousness constantly. And so it was with some surprise that I witnessed counsel, clearly appearing on behalf of a friend, bowl up and assume that at a first hearing all he had to do was ask for a couple of weeks to read the papers and an adjournment would follow. Oh the disappointment! Counsel, (not the baby barrister variety) was obviously shocked at the regime with which he was confronted. Initially, the Legal Adviser suggested that he read the papers and then take instructions on plea. His response was that neither he nor his client had received the papers and so he could not possibly take proper instructions without time to consider all the evidence. Both the Legal Adviser and the Prosecutor attempted to explain the position with regard to the rules, with which said counsel appeared to be distinctly unfamiliar. In any event, he would not accept their suggested offering of the papers and an agreement not to call on his client until later, giving him time to consider the papers and then enter a plea. Enter the bench. Counsel immediately rises to make an application and starts by informing the bench of the important status of his client and of his good character. But hold fast, says the Chair, "What is your application?" "Well if you will allow me to finish, the nature of my request will be clear". To which the Chair responds "If we don't know where we are going, we shall end somewhere else". Or something similar. Counsel eventually admits that he seeks some time, perhaps just a couple of weeks, to do what he needs to do. The Legal Adviser intervenes to remind counsel that the Criminal Procedure Rules, and the exhortations of the previous Senior Presiding Judge, make it clear that a plea is expected at first hearing, unless there are very clear reasons not to, and even then, only if the reasons are exceptional. This appears to be new information to counsel who is clearly not happy and continues his application by reiterating the important status and good character of his client. The local solicitors, now gathering at the back of the court, appear to find this display of ignorance both absorbing and amusing but the unfortunate barrister is not aware because he is getting more irate at the lack of understanding being displayed by the bench and the Legal Adviser. Part one concludes with said barrister being told in a loud and somewhat aggressive voice by the chair to take the copy of the papers that was previously offered; to leave for 30 minutes then come back for a plea to be entered. Part two: Counsel and client return with the Case Management form partially completed. Repeating his earlier display of a lack of knowledge, counsel now wants one of the police officers named to be called as a witness. Why, was the question from the Legal Adviser (LA). "There was a conversation with my client and the officer may be able to assist in what exactly was said". "What part of the officer's evidence is to be challenged?" Is the chorus from LA, Prosecutor and the bench. So the issues at trial eventually get established but in the face of a truculent barrister who has now confirmed his lack of appreciation of the case management methods now in place. Not only are pleas assumed to be taken at first hearing, but the trial issues and the significance and timetabling of witnesses are also assumed to be settled at that same hearing. There may be an accused person who has or will suffer because of the stringent adherence to these rules, but proper case management has shortened lead times, reduced trial times and has avoided the unnecessary appearance of police witnesses who are taken off their duties only to find that their evidence is not challenged. It is a pity that an otherwise professional lawyer, such as the barrister described above, should take time out of his area of competence to assist a friend without taking the trouble to review the changes to the way the magistrates' courts operate. In all, this case demonstrates that the changes are quite radical and if an otherwise competent lawyer is not aware of them, what chance the myriad defendants forced to represent themselves in the absence of access to legal aid?

25 comments:

  1. Argh, my eyes. Some kind of paragraph structure would be nice!

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    1. Not my fault, Guv. The original that was emailed to me was properly paragraphed, but the Blogger software put it all in one block.

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  2. And was justice served? Would this same bench have refused an adjournment request from a less pompous and out of touch advocate and his less important client / friend? This tale leaves a slightly uncomfortable taste in my mouth.

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  3. Since I retired some 8 years ago I am not familiar with the Criminal Procedure Rules but I understand that they formalise what was considered to be good practice at the time. Essentially, this case illustrates the principle that delay is a bad thing and to be avoided as far as possible.

    I am reminded of a traffic case and a similar application. At the trial, defence solicitor stated he had not been given a copy of the video evidence from the police car and asked for a two week adjournment. We refused, we made a room available with apparatus available and the missing VHS tape. The actual recording lasted less than 5 minutes so he was able to watch it 10 times over during lunch.

    He returned with a Guilty plea.

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    1. Before I too retired six years ago, I recall the advice from Head of Legal (JCs had by then gone to some remote office miles away) that not yet having had access to the CCTV was not grounds for delaying a plea, as the defendant knew that s/he could possibly, or could NOT possibly appear on film in a compromising manner.

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    2. Stop Delaying Justice is one of the best things that has happened in the magistrates' courts, and Bystander's tale is one which many of us come across week after week, showboating by learned friends who treat lay magistrates with something just short of contempt. Criminal Procedure Rules are quite clear, and have speeded up court processes dramatically; the defence (and sometimes the Crown) doesn't like it, but that's how it works now, and has done so for more than a year. If you can't get a plea out of the defendant at the first hearing without an exceptional reason, then mark him down as not guilty and start a case management form; whether he's represented or not, he will still have the chance to change that to guilty before the next hearing, and save himself the costs of a trial.

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  4. I have some sympathy for Charlie Chalkstripe here. The rules haven't changed substantially for a while. It's the application that has changed. This is information that is not freely available: you have to be a Magistrates' Courts regular to know it. It is worth remembering that in most other areas of law it would be considered outrageous to ask a party to proceedings to respond to a bundle of statements so quickly. It is also worth remembering that this an issue on which local practice can still vary quite a bit.

    Rather more importantly, there are often circumstances in which it is quite proper to request the presence of a prosecution witness at trial, even though none of the evidence in the witness's statement is challenged. The usual reason is so that the defence can ask this witness further questions about matters which could reasonably be expected to be within his knowledge, but which are not dealt with in the statement. Imagine that there is a domestic incident, not resulting in visible injury. The female partner calls the police. Officers attend. Their statements are brief: information received; attended address; arrested male partner. He is charged with assault. His case to his advocate is that he was calm at the time the police attended; she was screaming blue murder. If this is right, then evidence to that effect from an independent party - a police officer - will support his case. His advocate will therefore ask for at least one of the officers who attend the scene to come to court to be cross-examined.

    The way to avoid the unnecessary attendance of police officers and other people in a similar position is for them to write full and balanced statements. When I train non-police investigators, I tell them that if they want to avoid a lengthy wait in some far-flung courthouse, they should put any facts favourable to the defence in their statement. For some - not all - this goes against the grain. Their condign punishment is hours of machine coffee and ancient issues of Hello magazine.

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  5. Does this not evidence a deeper conflict of principles? The 'old school' barrister here wanted time to analyse the evidence to see if his client should plead guilty because they think the prosecution can PROVE it, whereas the attitude now (exemplified by the CCTV comment above), is that you should be in a position to plead straight away because YOU KNOW full well whether or not you did it.

    I have no problem with those who know they committed a crime, but don't think the prosecution can prove it, being forced to take a gamble on sentence discount by being forced to enter an early plea of not guilty. This doesn't weaken the notion of the state having the burden of proof, it just means that if a guilty person pleads not guilty, and are subsequently found guilty, this is reflected in the sentencing exercise.

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  6. These are very good points Anon 10.18

    One has to leave aside the behaviour of the advocate and remember the defendant's rights. If the defendant is unlucky enough to be represented by an irritating advocate, it isn't usually their fault.

    Having heard many applications for adjournment of trial over the years I can't remember one where the decision was made without proper consideration of the interests of all parties and the history of the case.

    @Jaguar - perhaps I have been lucky but I have very rarely (and I mean less than a handful in nearly 15 years) seen advocates behave in the contemptuous way suggested and on those very few occasions it has been dealt with robustly. In my experience Legal Advisers at my court give robust good advice, wouldn't stand for nonsense and are happy to correct advocates on the rules on the rare occasions it has been necessary.


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  7. I can well remember a trial at which the defence barrister, and he was a barrister, was so rude, not only to the bench but also to the legal advisor that he was told more than once by the chairman, not to be rude. That made hardly a jot of difference.

    When it was all over we formally reported said barrister to our senior legal adviser and asked for a written complaint to be made. The senior legal adviser happened to be in the building on the day and was having reports fed back as it went on.

    I saw a copy of the complaint. It was not as strong as I would have made it but it did give me some sense of satisfaction at having been done. I do though still wonder if he was ever even told about it. Do I hear some say "has he no faith in the system"? Sadly, no I don't because we never got the apology that should have been forthcoming.

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  8. I'm with the barrister here - if the Crown cannot produce the papers substantially before the case then the case should not proceed. An informal 30 minutes is hardly good enough. It gives no opportunity to consult books/colleagues/experts/etc.

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  9. Anonymous July 28 00.05 (my, you were up late!) wrote:

    "@Jaguar - perhaps I have been lucky but I have very rarely (and I mean less than a handful in nearly 15 years) seen advocates behave in the contemptuous way suggested and on those very few occasions it has been dealt with robustly."

    It's not the local advocates, it's the ones sent down from London who tend to treat magistrate benches as country hicks. Most memorably, we had a self-important Inns of Court barrister who arrived late to speak for his celebrity client, who was facing a driving ban for excessive speed. He blustered into the courtroom, and demanded that the bench hear his case immediately, as he was a very busy man and was due to appear in the Crown Court at 2pm.

    But we had already put the case back to the afternoon, and left it there; despite his apoplexy, our legal adviser backed us to the hilt. When I spoke to one of our judges about it weeks later, he said we were quite correct - that the Crown Court had no right of priority over the Magistrates' Court, and would have to wait its turn.

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    1. Doesn't the Coroner's Court outrank the mags ?

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    2. It's not a question of which court outranks another in this situation. An advocate should finish dealing with the client he is at court to represent before leaving to attend to somebody else.

      He should also arrange his affairs so that clients are not left unrepresented should he go over at another court.

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  10. Sadly a lot of civil lawyers mistakenly think that criminal law is easy and requires little skill. Something Jack Straw explicitly said when he was in Government.

    I was once amazed to see a couple of posh kids who had joy-ridden their own car over their former schools playing fields show up with two very experienced civil lawyers who proceeded to take an HOUR to mitigate in a busy magistrates' court. They had no real idea what they were talking about, didn't seem to have any idea what the sentencing guidelines were and failed to address a single aggravating or mitigating feature of the offence. Frankly, they were so boring that most of the court was snoring!

    Always get a proper criminal defence solicitor rather than your mate or your family commercial lawyer is my advice.

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  11. I agree with nationalist @ 09:05, if the prosecution can't even get the papers to the defence team prior to the case there shouldn't be a case to answer. For heavens sake I work in planning appeals, and the rights or wrong of whether someone should be allowed to build an extension/or has built something without permission is trivial compared to the criminal law, but the system seems to be a lot more rigorous about allowing parties access to the evidence. If the paper work isn't given to both sides in good time then you can’t expect to be able to adjourn, - either the case would be thrown out or the evidence contained in the missing papers would not be taken into account, as a consequence in 15 years I can’t recall a single occasion when paper work or evidence has not been distributed to both parties in good time.

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    1. In fairness, it has to be remembered that there is not the same urgency in dealing with criminal matters as civil ones. The applicant who wants to build an extension has not spent the previous night in cells, he may be sleepy, disoriented and then finds himself in the unfamiliar court which insists he enter a plea.

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  12. Although the direction from Leveson LJ states that a plea must ( the quote is "must means must" and the second "must" is in red, in capitals, and in bold) be taken on the first appearance, there are occasions when it doesn't seem just to insist. I think of the times where legal aid has been sought but not yet granted, so the solicitor is not in a position to take instructions or give advice. Clearly, despite the fact that in the vast majority of cases the defendant knows full well what he did, it does not necessarily mean that he is guilty of the offence charged, nor that he does not have a statutory or other defence to the charge.

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  13. Nerd for Justice30 July 2013 at 12:44

    Going at a slight tangent to this topic... the gist of these reports:
    http://order-order.com/2013/07/30/macshane-in-court/
    http://order-order.com/2013/07/30/macshane-justice-delayed/
    seems to be that a defendant was due in court today, but it turns out he has gone on holiday instead.

    Can that really be correct? Wouldn't something like that have to be applied for in advance?

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  14. I think the issue of Civil Lawtyers thinking crime is easy can extend to other areas where non-advocates think advocacy is easy.

    I an a family lawyer and do the majority of my own advocacy. I have definitely come across the issue of lawyers appearing for their mates, dabbling in family law, without having the faintest idea what they are doing. I had a very snooty London (commercial) lawyer show up for a Children Act hearing - he was very rude to me (I had the temerity to be both female, young AND working for a provincial firm, y'see) .. He did not not know what I was talking about when I mentioned the Welfare Checklist.

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    1. Ed (not Bystander)30 July 2013 at 18:20

      I would hope you referred this individual to the answer given in Arkell v Pressdram.

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  15. I agree. While it is frustrating and a waste of the the court's time, the fault lies with the prosecution if they have failed to provide the information, and it is unjust that the defendent should be penelised as a result.

    Do you have the power to make wasted costs orders? If so, then a wasted costs order against the prosecution in such cases, and an adjournment to allow the defence proper opportunity to consider the papers once they are served would seem to be appropriate.

    We had a major problem with one of our local Local Authorites consistently failing to file papers in Care proceedings, or filing very late. One of our local Judges started to impose costs orders against them each time this happened, and suddenly they started being able to comply with the time tables like everyone else. Sadly that Judge has since retired and they are slipping again, but it was nice wheile it lasted.

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  16. Generally speaking the tactical game playing has gone, but there are times when an adjournment is fair. This Barrister must have had a chat with his client, who probably knew the gist of what he was accused of. Most cases do not take hours of preparation a fairly decent stab at what the plea can be made by any experienced advocate, solicitor or barrister. The trouble is that still in the crown court it can be a bit of a game, where things take for ever, not because they need too, but because that's the way things are done there.

    The stop delaying justice has been an absolute transformative process in the Mags, the same needs to happen in the CC. I have a feeling the changes in legal aid will concentrate the mind more than before.

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  17. Quote - this case demonstrates that the changes are quite radical and if an otherwise competent lawyer is not aware of them, what chance the myriad defendants forced to represent themselves in the absence of access to legal aid?

    I agree.

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  18. An ammusing story about an incompitant barrister suddenly turns into the most important point in the whole post

    'if an otherwise competent lawyer is not aware of them, what chance the myriad defendants forced to represent themselves in the absence of access to legal aid?'

    At what point does Justice rather than the Judicial system raise its ugly head and be noticed?

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