Tell Me It Ain’t So…
Off to court yesterday morning. Standard kind of court list, three CPS trials listed, 2 in the morning, 1 in the afternoon. The subject of the charges also pretty usual, a couple of Assault by beatings (Common Assault) with domestic violence overtones and a Harassment without violence. In we go at 10 am all fired up having had some Case Management Training on Saturday…sadly it all went downhill from there.
Under the Criminal Procedure Rules, when a defendant pleads Not Guilty, the prosecution are under a statutory duty to serve Initial Disclosure on the defence within 14 days. This comprises the witness statements, interview summary and basically all the evidence on which the prosecution intend to rely. The defence then have to indicate whether they intend to serve a Defence Case Statement based on the information the prosecution have disclosed setting out in broad terms the defence case. This is to prevent either side springing an ambush on the other…
As JP’s we have been exhorted by our masters at the MOJ to speed up justice and to actively case manage trials to ensure that there are no unnecessary delays and this includes detailed questioning of the parties at the entry of the plea to assist in the completion of the Case Management Form…all intended to avoid unneeded attendance of witnesses (especially police officers) whose evidence is not likely to be questioned as its uncontroversial, and therefore whose written statements can be read thus saving lots of court time and attendant cost – a mission close to the hearts of said masters.
First case called. Defence rise…we cannot proceed as Initial Disclosure has not been served and despite repeated letters to the CPS it’s not been forthcoming. Can it be served now we ask? No, says CPS, we don’t have it either, as it was sent on Friday (ie, zero working days before the trial) and there are other issues causing difficulty anyway. Case reluctantly adjourned.
Next case…can you guess dear reader? Oh yes exactly the same problem with failure to serve Initial Disclosure, and with the third case. Result a whole court wasted with 3 ineffective trials because someone failed to do their job properly. Now I don’t know if it’s because when the files come back to the CPS office after first hearing no one actually bothers to follow up what has happened or it’s because the unit at the police which deals with statement preparation aren’t responding to requests from the CPS…in a sense I don’t care where the fault lies. I DO care that justice is not being done as a result. Victims of crime feel let down (who can blame them) and defendants suffer delay. The court system (and particularly hard working staff and JP’s) take the blame and have resources withheld or courts closed because we are considered ‘inefficient’ Instead we are foisted with half thought through initiatives put together by a nameless civil servant whose probably never set foot in a Magistrates Court in their lives.
In speaking to colleagues at other courts, it’s clear that this complete failure to follow the CPR is now a commonplace occurrence and the frustration throughout the system is palpable. It’s not acceptable; it’s wasteful of time, money and resources. And if that doesn’t get the attention of the MOJ then nothing will.
The CPR is not being wilfully neglected by the CPS but it's clear there are difficulties. And those difficultives aren't conducive to 'speeding up justice'.ReplyDelete
In this case, the defence themselves could have been more proactive and listed the cases for mention for non disclosure. That way either disclosure would have been made or the trials could have been vacated much sooner. The court could be then be collapsed or used in a different way, and, perhaps most importantly, the witnesses would not have had to attend unnecessarily.
No contempt of court powers lying around unused, could you bump up a case to crown court to make an example of them?ReplyDelete
I confess that nowadays I react with pleased surprise when a trial I am sitting on actually goes ahead.ReplyDelete
Failure to disclose in time seems to be becoming the norm around our parts.
I don't think I've seen an effective trial for the last 4 months or so. The problems listed here are now the norm in the various courts I sit in, which are the same courts that Bystander JP sits in......ReplyDelete
I have followed this blog for a considerable time and been impressed by it's insights to the Magistrates Court, to the extent that I have considered looking into applying myself.ReplyDelete
It is somewhat amusing that since the intervention of 'the authorities' to muzzle such a great resource, it has turned ever so slightly darker and critical of the system.
Keep up the good work!
With the addition of new authors, we will be seeing differing styles, attitudes and phrasing. Should be an interesting future.Delete
We may even come to miss the one and only, the inimitable and still outstanding Bystander ("sans pareil" [beyond compare] is one expression that springs to mind).Delete
I would have thought the most effective way for said civil servant(s) to come up with initiatives to try and speed things up would be to wander around the courts in person for a few days (or maybe even weeks) to get a feel for how things actually work in practice and see where the obvious problems lie.ReplyDelete
Certainly, that's how I would approach it, although admittedly I am not a civil servant and nor do I have much knowledge of the courts system.
I think I already know the answer to this question, but presumably no such thing has ever been seen, and said civil servant(s) remain in their ivory tower making up stuff that sounds impressive on paper and uses lots of flashy buzzwords?
That's just what we need. Suggested solutions from people who openly admit not knowing much about the problem.Delete
I suggest that as in many areas of life, one gets what one pays for. We currently have a Government hell bent on destroying public services and yet still expecting a rolls royce service. The CPS, HMCTS and the MOJ themselves have been subject to some pretty savage cuts over the past couple of years so is it any wonder we are in such a depressing position. There is, of course, some light at the end of the tunnel because once the Police Service has taken its full whack of Government "smarter working initiatives" there will be far fewer officers available to arrest suspects and so court business will reduce. Then, the door will be open for those nice, helpful chaps from the private sector to take over. It's already started with the tender for Fines Collection and Enforcement work in London and we know from the Olympics just what a great job they're likely to do.ReplyDelete
You should change your newspaper ;) You've been reading far too much of the Guardian.Delete
Hogan Howe said only recently that it was quite possible post the cuts that the Police service would have more frontline oficers than previously.
"He said it was possible the force could "end up with more constables than we have ever had, even if we have overall less than 50,000 people".
We currently have a Government hell bent on destroying public servicesDelete
Do you have an agenda, "hearsay"? Or, you know, evidence?
You believe that from Hogan Howe ? Anything might happen, but it is hardly clear how or what the plan is so it will. Bureaucrats always say cuts lead to a better service. Nothing else they can say, really, and the 'possible / might' caveat out protects them from an accusation of lying later on, when their successor mysteriously could not follow through because of 'unforeseen circumstances'.Delete
Anonymous at 14:34 - how exactly do you think you'd get more officers with the cuts? The only way of getting more bodies on the streets is by removing all but the most cursory of paperwork, all tarkets, monitoring systems etc.Delete
Whereas evidence from people online is that with the cutting of civilian staff, actual police officers are doing more office work. Whilst at the same time front line officers are being cut, with fewer on response, fewer CID etc. Of course the precise details will vary depending on where you are in the country. But frankly, Howe is almost certainly being economical with the truth.
If the CPR is blatantly nor being followed then there is ample reason to dismiss the case. If we are going to put someone on trial the very least that we can do is make sure the right and fair process is followed.ReplyDelete
It seems here the CPS know that they are going to get their 'reluctant adjournment' and as such are taking the michael.
PS... having said that the procedures that the CPS now have to follow, lack of discretion of prosecutors at the sharp end and the staff cuts mean you have to feel sorry for the poor bugger who is sent along to front up these cases.
you never see any of the top brass coming along to explain, they leave it to the worker bees and fiddle whilst Rome burns!!!
this may be naive, but have you thought about the following:ReplyDelete
1) Prepare a form letter (granted, a bit of an effort once, but shouldn't take too much time). It would be an eloquent version of "Dear XY, due to the incompetence of the responsible CPS team in not serving Initial Disclosure in due time, the trial in case 12345 had to be adjourned. This is a waste of time and money, and I'm afraid clearly your organization's fault. Could you please ensure it does not happen again.
XYZ (this could be the Chairman or the Legal Adviser).
2) For every case which proceeds in the way you described above, you print two copies of this letter and fill in the trial number or whatever other identifier is commonly used. Shouldn't take longer than 2 minutes.
3) One copy goes to the District Crown Prosecutor in charge. The other copy goes to the appropriate senior official in HMCTS, i.e. one of those who always ask for more efficient trials.
4) Over time, as you repeat this for every trial, said people in charge start figuring out where the problem is and/or be embarassed enough to do something about it.
That is something that should be considered, if things do not tighten up quickly!Delete
Good relationships are very important in court as trust is crucial, but taking the Michael once too often, shows a complete lack of respect to the bench and has to be addressed firmly. The timing of this is up to the bench and sensible consultation with colleagues who also face this problem?
This problem may be getting worse, but it is not a new one, nor confined to the criminal justice system.ReplyDelete
Some few years ago I was peripherally involved in a civil case. In this instance, delay was in the interests of the defence, who proceeded to treat every case management deadline set by the Court has having advisory status only. This went on precisely until the DJ made it clear quite how close he was to awarding summary judgement and indemnity costs to the plaintiff.
Which is the point, of course: ultimately the matter is in the Court's hands. No prosecution disclosure without good cause? Deft acquitted, costs against the CPS. Defence statement out of time? Attempted ambush, wasted costs order.
Harsh? Rough justice? Perhaps it is. I bet it wouldn't happen often before word got round the local CPS and crim def solicitors that the words "hereof fail not" meant exactly what they say.
If there is no sanction, the rules will not be obeyed. If the CPS gets away with vague appeals to apply the "overriding objective", this sort of thing will continue. Yes, resources are an issue but often it is laziness or incompetence. A few trials kicked out and the message would go out. It may take a judicial review or two to stiffen spines, I think.ReplyDelete
Indeed. We did just that at the recent trial. Adjournment refused, no evidence offered, case dismissed. LA not happy but, as it was pointed out, in this case charges could be relaid if it was decided to proceed.Delete
We do not see as much of this problem in the courts in which I sit. In this case CPS had 8 weeks to get its act together and if they get adjournments every time they ask then they will not change.
They don't like it up 'em!Delete
Do you not have intermediate diets to prevent this like we do on the other side of the border? It won't completely eliminate the issue but it should be the exception when on the day of a trial one party is not ready to proceed.ReplyDelete
English and Welsh courts have similar mechanisms to the Scottish first and intermediate diet system, and many of the conclusions of the various studies available into the Scottish judicial system of robust case management have fed into the successive initiatives adopted in the English and Welsh courts (CJSSS and Stop Delaying Justice to name but two of the more recent ones) are mirrored in those on the various initiatives taken south of the "Borders". In this respect, I would opine that it is perhaps just as well that the majority of cases that come before the magistrates' courts in England and Wales are still dealt with by lay benches, as the "performance pressures" on HMCTS staff and aspirant DJ(MC)s clearly appear to push them towards different outcomes than those adopted by lay benches, who are able to take a decision on whether or not the interests of justice are best served in any given case by a particular course of action without thinking first of their career progression or pensions.ReplyDelete
In faithful Bystander fashion, not all of the details have been given. There had indeed been pretrial hearings in all cases mentioned above and warnings as to wasted costs given. All to little or no avail. And DJ's are experiencing exactly the same problems...it's little or nothing to do with being a lay bench or otherwise.Delete
If the mechanisms are the same as a Scottish Intermediate Diet then the trial date shouldn't have been confirmed until both parties stated they were in a position to begin - far better to set another very short intermediate diet than drag witnesses etc to court for a trial that will never start.ReplyDelete
Many's the time I and my colleagues have had CPS 'urgent requests' for this, that and the other, on a file the day before trial, and usually after 3 in the afternoon. It's because the CPS are so understaffed that they don't review the cases until the day before trial.ReplyDelete
Or, my colleagues get the same request for information 4 times, with increasingly threatening missives regarding possible discipline, because the inbox they send the submissions is not being checked.
I haven't seen much mention here that gives confidence that magistrates actually understand the disclosure rules and the need to differentiate between summary and either way matters.ReplyDelete
You are aware, I trust, that due to budget constraints, CPS offices are often effectively empty? Also, that prosecutors too are subject to the latest govt. wheeze, no matter how far it may take them from preparing and conducting prosecutions? Inevitably, those who are allowed time in the office to deal with casework feel it more important to deal with the Crown Court prep than with the MC matters. We don't like it any more than you do; but what we really don't appreciate or need is the arrogant assumption by all and sundry who know nothing of the internal workings of the Service that most problems are due to incompetence rather than low staffing levels. Any prosecutor could rant on about incompetencies elsewhere in the system but generally we don't because we know the majority - as in the CPS - are hard-working and competent, doing their best in difficult circumstances.ReplyDelete
Your commentary on modern life as represented by court business can be fascinating; the ill-informed and prejudiced analysis by your many readers of the problems within the CPS and police rather less so. A great pity.
You picked on the wrong writer to criticise...I was a CPS prosecutor in a previous existence and know full well that resourcing cuts are biting hard all round. But that's not the point is it? You may wish to please Crown Court judges rather than mere JP's but the vast majority of cases are dealt with at Magistrates level and victims in particular are entitled to as much consideration as in other parts of the judicial system.Delete
If you read the piece properly you will see that I did not only point the finger in one direction. But please, don't let the truth get it the way of a good defensive rant...
I think the rant was aimed more at the replies than your initial post Bystander J.Delete
I disagree with one thing - I do not feel Crown Court work is more important. The stakes may be higher in terms of outcome but other than that there is no difference. When in the office I apply my time equally to both. One of my pet hates is people disregarding Magistrates work in favour of the Crown Court.
Bystander, refuse a few adjournements in such cases and the CPS will soon get the message.ReplyDelete
As Legally_blonde correctly notes (thank you), the rant at 00:25 on 12/10 was directed not at Bystander J but rather at the less informed of his commentators.ReplyDelete
I should add that it is not a case of thinking that judges, cases or victims are more important in one court than in another. Far from it. However, of the two, a problem in the CC is the more likely to result in a complaint, internal investigation (which does have consequences for those involved) and the need for detailed explanations. All those distract further from prosecuting. If a choice must be made, it is never easy, and it is incorrect to think as some may that we do not "get the message": I think I can say that most of us want to be proud of what the CPS does.
To be precise, Bystander, in d.v. matters the person who feels let down is the complainant, not the victim, and the v-word is out of place because it presumes guilt.ReplyDelete
As for the substance: adjourn once if you must, but a second time insist on proceeding. No evidence offered - charge dismissed - and in my view running it again is an abuse of process.
Why adjourn the case, if the prosecution have a Statutory duty to perform an Initial Disclosure within 14 days and have failed to do so, then you should surely dismiss the case and award costs to the defence. Then issue a judgement making it very clear where the blame lies and send a copy to The Daily Mail.ReplyDelete
A few of those would more than anything make it clear that the problem needs to be resolved pronto.