The CPS, an organisation that teters on the edge of meltdown, is appallingly poor at carrying out its basic functions of getting cases to court on the right day and with the right evidence. Only last week I saw a prosecutor serve an 80-page file on the defence advocate in court at 10.10 am on the morning of trial. The court had directed it to be served some weeks previously. The poor devil had to beg for time to read it, so the court cooled its heels for an hour or more.
Now the organisation is trying, as it often does, to take over the much more interesting job that belongs to the judiciary - here is an example.
Parliament makes laws, and courts enforce them. Stick with that madam Top Prosecutor, and sort out the nuts and bolts of your job.
Musings and Snippets from a recently retired JP. I served for 31 years, mostly in west London. I was Chairman of my Bench for some years, and a member of the National Bench Chairmen's Forum All cases are based on real ones, but anonymised and composited. All opinions are those of one or more individuals. JPs swear to enforce the law of the land, whether or not they approve of it. Nothing on here constitutes legal advice.
Monday, November 18, 2013
Sort Out The Basics, Girls and Boys
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We have had similar cases recently: CPS either serving the information far too late for the defence to make necessary applications, or - as with yourselves - serving it on the day. In both cases, defence applied for an adjournment and we felt obliged to accede to the request: why should the defendant suffer because of CPS incompetence/underfunding?ReplyDelete
I'm still in my probationary two years, so I'm inclined to defer to the chairman and the other winger, but I thought that we should encourage the defence to apply for a wasted costs order (the defendant was privately paying, so would lose the cost of the extra hearing). We didn't, because the other members of the the bench, and our legal advisor, took a relaxed view of having to adjourn the trials (and go home at 2pm), but I was inclined to encourage the use of a) adjournments and b) wasted costs orders whenever CPS fail: otherwise there is no incentive for better performance, surely? What are your views, please? And is there a forum in which we can ask these sorts of questions, perhaps through the magistrate' association?
Others will disagree but, for me, forget the MA. After six years I cancelled my membership. With a falling membership I would have thought that someone might have had the interest to ask me why or to ask that I reconsider but not a word from anyone. No way will I consider going back now. It's a talking shop ignored by the government, despite their cosy meetings and hot air to the contrary, and by every other body that should be paying serious attention to it.Delete
I agree with Bystander. It is happening more and more, that's assuming the prosecutor actually arrives at court. The best way to get the CPS to get their house in order just to achieve the basics is wasted costs orders. The other thing we are doing, when a trial doesn't go ahead on the day because of the CPS and we refuse to allow more time, is to make it very clear on the form that the failure that day lay squarely at the door of the CPS.
The CPS deals with around 800 000 cases annually, with a shrinking budget and workforce. Yes, it can mess things up but if it is "appallingly poor", how to describe counsel, justices, DJ(MC)s and Crown Court Judges? They fill the CACD and Administrative Court with work every day of the week and some of the errors revealed there are truly astounding. As has been been suggested before in this blog, we in the criminal justice system should beware of becoming like characters in an Escher drawing, with everyone looking down on everyone else.ReplyDelete
Many (including no doubt some within) may agree that the CPS should concentrate on its central role: the more roles it seeks to cover, the more numerous its failures will inevitably be. But to describe it as "appallingly poor" in any respect is unfair to the vast majority of dedicated staff who successfully but thanklessly bring to a conclusion the overwhelming majority of prosecutions - even, I might hazard a guess, in your court.
Still the only blog I can face reading though, so this is a plea more than a whinge.
Another worrying thing about that article - Baljit is NOT the new head of the CPS!! Alison Saunders is. But imagine if she was...ReplyDelete
Could a court order, as the law now stands, ban someone from wearing hoods or the rest? And, is it appropriate for the CP to make specific suggestions to the court, e.g., on the sentence, or on bail conditions ?ReplyDelete
Can the court just dismiss a case if the CPS hasn't met its obligations? If so, that would get their attention. (Probably best to only use that approach for relatively minor, non-violent crimes - if someone gets hurt by someone that would have been locked up if a previous case had just been adjourned, there could be quite a backlash!)ReplyDelete
This is just one of many scenarios.Delete
At the start of a trial the defence, or even the prosecutor, stands up and says, despite at least one previous court direction, the CPS has not yet complied with its disclosure requirements by the specified deadlines. Often some very weighty documents will have been handed over by them a few minutes before the start of the trial, giving the defence no time to read them. The bench asks why and the prosecutor waffles. The bench asks the defence for their view about the adjournment request and we get the 'my client should not have this hanging over their head for even longer because of CPS failures' argument once again.
The court will by now have been given by the legal adviser a full history of the case since it was first in court. We will know exactly when the CPS was told to disclose material by.
The bench considers it, tells the prosecutor that the defendant should not be left hanging in the wind (probably not for the first time) due to their inefficiency and the adjournment is not agreed. The prosecutor offers no evidence, case dismissed, defendant walks, tax payer is seriously out of pocket.
Is this justice? No of course it's not but why should the defendant, who is of course innocent until proven guilty, and possibly umpteen witnesses some of whom may have had to book a day of holiday from work, or perhaps not work and not get paid, have to come back to court yet again because the CPS didn't do it's job properly? Sadly there also remains every possibility that, even if adjourned to a new trial date probably some months ahead, the CPS will still not have go its house in order.
Also keep in mind this is not just the CPS. I am starting to hear all too often that information/evidence requested from the police by the CPS for the trial simply isn't passed over as it should be.
I was on a trial recently and heard at the outset that the CPS was missing some vital evidence. They had emailed the officer in the case some weeks before but got no reply. That was because, as they discovered later, he was on long term sick leave but clearly nobody was checking his email. Having not received a reply, the CPS then failed to follow it up until a day or two before the trial. and by then there was no time for the police to find and pass on what was needed.
"... because the CPS didn't do it's job properly?"Delete
Misusing the apostrophe should be a capital offence...
Perhaps I'm wrong but instinct suggests to me that things were better when a local solicitor did the prosecuting on behalf of the police. He had the incentive to do his best, otherwise the police might go elsewhere, and he worked with the police to decide the charges and secure a conviction.ReplyDelete
Now, my daughter (who was a civilian worker with the police) tells me it's a constant hassle to get the CPS to rake action, and they always want to downgrade the charges to improve the chances of a conviction and thus meet their targets.
How can "gang members be banned..." anything? Gang membership is not an offence unless the gang is a named proscribed organisation. A person cannot be punished unless they have been found guilty of something. (The 1689 Bill of Rights still applies, I believe.) Barring a person from a specified post code area is deprivation of liberty - one of the more serious punishments - and would be void without a conviction.ReplyDelete
Barring people from specified areas has worked for Anti-Social Behaviour Orders for years without a successful challenge so I imagine you're wrong there.Delete
As someone who regularly takes matters before CPS -ReplyDelete
It depends entirely on which lawyer picks up the phone. Some are excellent, on the ball and will charge the appropriate offence. Others are unbelievably obstructive and seem to be determined to find an excuse not to charge and request ridiculous and unnecessary work by the police before they will even consider it or seem determined to NFA (no further action) decent investigation with lots of evidence. It seems routine to charge a less serious offence for no good reason and there is nothing we (the police) can do about it. We do have the ability to appeal a CPS decision to a more senior lawyer but it is a hopeless exercise and they inevitably side with their colleague. The fact this is all done over the phone with random lawyers based all over the UK means they escape any serious comeback for messing things up.
At court they often have not read the file until that day and are unaware of important details and have to be briefed by the OIC when we turn up. I have had to help frantic CPS lawyers sort through paperwork to disclose to the defence on the very morning of a trial.
On the other hand, certain local CPS lawyers have an encyclopaedic knowledge of the law and can run through cases very efficiently with only a brief glance at the file and get good results. They are overloaded with cases and as an organisation, require a great deal of improvement.
The problem is that it such complaints can go both ways and it is often hard for anyone to identify the truth. Responding generally (not specifically to the examples above):Delete
Is the CPS lawyer lazy and loathe to charge a "difficult" offence, or is s/he simply a better lawyer than the officer, who has hopeless expectations of a half-baked investigation?
Has the file not been read because the lawyer is lazy, or could it be that large parts of it were languishing on an officer's or civilian worker's desk until a harassed young PC was ordered to rush them to court?
Does the officer need to brief the lawyer at court because of the lawyer's incompetence, or is it because the the case summary - which was all the lawyer had time to read - was written by a ten year old?
Is the lawyer bad-tempered because he is not up to the pressures of the job, or is it because the Flying Squad turned up mob-handed two minutes before court was due to sit, with four defendants, five robberies, nine charges, a fifteen page "summary", no charge sheets or summaries for the court or defence QCs, and an expectation that the prosecutor will talk to them for 20 minutes then deliver the speech of a lifetime in objecting to bail?
Was the prosecution at fault for the late service of further disclosure in the Crown Court, or was the defence statement written by that (clearly talented) ten year old, and so unhelpful that it was only after extensive probing that the nature of the defence became clear, shortly before the trial?
All the above happen, with fault and frustration on all sides, and everyone involved knows it. It is only natural for people to defend their own positions, and there will always be a temptation to criticise the "other side", be it CPS, the police or the defence lawyer. It helps to remind oneself of this occasionally: it is not just defendants who need to be honest with themselves.
"It seems routine to charge a less serious offence for no good reason".Delete
Sadly there is often, what the CPS thinks, is a good reason, namely that it's easier to prove a lesser charge, assuming the defendant doesn't decide to plead guilty because it's a lesser charge. I've seen a number of cases lately when a defendant has been charged with simple possession of class B, cannabis. Given the amount they have had on them why they were not charged with intent to supply is beyond me, unless one considers that simple possession might be easier to prove. Also, amazingly, they always seem to plead guilty charge when it looks as though the higher charge would have been in order! Andy they say we don't have plea bargaining in this country. Really???
We certainly do have plea bargaining in the UK. See R v Goodyear and CPS guidelines on "advance sentencing indications".Delete
When a Bench makes certain directions with clear timelines, is there no recourse if, for whatever reason, the CPS blatantly ignore them?ReplyDelete
The sanctions are either to throw the case out for non compliance with the Criminal Procedure Rules (not sure justice is always served - especially for the alledged victims); exclude the relevant evidence under S 74 PACE (some DJ(MC) have tried this with varying sucess) ; or to make a wasted costs order.Delete
A propos CPS resources, why isn't there an outcry at the almost total lack of prosecution of commercial scale smuggling exposed today cf the huge resources devoted to prosecuting journalists who have listened in to celeb. and politician's 'phones?ReplyDelete
As JP and civil litigator in my day-job I think we should as magistrates apply rules similar to those now being applied in the civil courts: orders are to be complied with and extensions will rarely be given. If on the first appearance the CPS make a good case that the time proposed for disclosure is not enough, fine, give them longer; but then they must stick to it. Or have the case dismissed, and I mean dismissed, not withdrawn, so that autrefois acquit will bite.ReplyDelete
Not sure that Andrew’s view works in practice, or that there is a power to dismiss solely because CPS has failed to comply with directions on disclosure. Not uncommonly in this situation, notwithstanding its failures towards the defence, the CPS may well have its own evidence ready for the trial to go ahead. Sadly it is then the defence that is forced to apply for an adjournment – and the bench is forced to agree, with wasted costs being the only potential redress.Delete
I have not only seen it done; I have been the one in the Chair who announced it.ReplyDelete
This is very good news. Andrew has found a solution that inexplicably had escaped the rest of us. From now on we must all apply it. Though, to avoid the Divisional Court being clogged with hundreds of CPS applications for JR, it would be ever so helpful if Andrew would share the legal authority/reasoning.Delete
If only JPs had some sort of professional available, who could "advise" on "legal" matters. That seems like it would be a good idea.Delete
After the recent riots I read that gang members could not stray outside their area for fear they would be attacked by adjacent gangs. The riots were liberating in that they were free to roam at will. Where would these gang members go if they can't stay in their local area. Would we be setting them up to be assaulted?ReplyDelete
Anonymous at 20.08ReplyDelete
We do, it's called a court legal advisor!!!!