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?