Monday Message 21.10.19

ITS ALL IN THE NUMBERS: CRIME STATISTICS:

The most recent crime statistics were released this week. They did not make for surprising reading. Offences of robbery increased by 11 per cent, offences involving a knife or sharp instrument increased by 7 per cent, offences involving firearms saw a 4 per cent increase.

Fraud increased by 15 per cent, public order offences increased by 9 per cent. It will be interesting to see how those increments are re-branded into a totally different set of figures, no doubt giving rise to fewer and fewer sitting days.

AND ON TO THE CONTINUING SITTING DAYS FIASCO:

Welcome to the consequences of the phenomena of “HOT COURTING”.  The name of the Crown Court has been removed as this is a case involving sexual offending:

Trial: listed for 3 days, a four-count indictment; s47 assault, possession of offensive weapon, assault by penetration and common assault. A domestic violence background with two complainants, timetabled to give evidence in a sensitive and traumatic case.

The trial judge had three other cases to deal with prior to the trial. Trial listed NB 11:30. Regrettably, the trial judge was sharing his court with another judge who was now part heard in a trial AND HE HAD A SUMMING UP TO FINISH.  No-one was aware of this fact, until they arrived at court. This judge was not sitting in his usual courtroom. The consequence of this stroke of genius was that two trials were queuing. The jury in the second trial was not sworn until ten minutes before lunch, with the judge providing the usual preliminary directions. However, the jury who had just been sent out, then asked to watch the CCTV again. This exercise had to be done in open court, using a sterile CPS laptop. Counsel in the second trial, enquired what was wrong with the judge’s usual court? Was the court closed for repairs, such as the ceiling collapsing or the lights not working? The answer was refreshingly simple. Nothing to do with repairs, just that the two 2 judges were “hot courting” because of the policy on court sitting days. They were saving electric.

But it did not stop there.

In addition to the viewing of the CCTV the same judge also had to deal with a bench warrant. More delay and this was only day one.

What were the overall consequences of this brilliant piece of logistical penny pinching?

Firstly, counsel, who had provided a witness list based on an earlier start, was not informed about the “hot courting” in advance, so witnesses who attended or were due to attend had to make significant re-arrangements to enable the trial to continue. What a waste of time for witness support. How stressful for the witnesses. Did anyone really think about the defendant or enquire if this was a case where expert evidence was to be called? Secondly, prospective jurors were kept waiting, Thirdly, the trial took longer.
Looks like that saved some money……. not.

WHAT, NO JUDGE?

I want to be clear that none of this is the fault of listing officers but the position that witnesses, defendants and counsel are being placed in cannot continue. The following is a recent addition to the already growing list of appalling decisions, consequences or otherwise.

A trial involving serious sexual allegations was given a trial date of December 2019 after PTPH in April 2019. On 14th October, listing informed defence counsel that the trial would have to be vacated as there was no judge. AM I REALLY HEARING THIS? NO JUDGE?  Apparently, no judge could be found and listing had telephoned around all of the courts and no one can possibly hear the case. Well, let the CBA help:

JOB VACANCY – “WANTED, CRIMINAL RECORDER TO HEAR A TRIAL”
That was not so difficult was it?

If that appears flippant, then it is only in response to a policy that is ridiculous in the extreme. It is treating trials as if they are some sort of victorian music hall turn.

But who is running the courts? Herewith an example of an application to vacate where the day before the trial was due to take place, an application to vacate was made and refused by the Judge. Thirty minutes after that decision, “Listing”, of their own volition removed the trial, citing lack of court time. So much for the judge, so much for the complainants, so much for the defendant, never mind counsel.

A further painful example is listed today at Teesside Crown Court and is presently described as a “priority” floater. It was originally a six-day conspiracy adjourned in February to a date in July 2019. It was taken out of the list and listed as described above. So far no court is available for this matter. I remind those who are reading this, that Teesside is a first-tier criminal court and over the summer sat with one judge. The back log is groaning. How has this come to pass?

JOB UPDATE:

Well the reason the Monday Message is slightly delayed today is because I wanted to be able to report back to you, straightaway what happened in the case above where listing wrote a letter saying that there was no judge. The very much resisted application to vacate was heard late this morning.

The result, well it is simply amazing, it beggars belief, it is akin to a miracle. Dear Reader, you simply will not believe this, they came up with a genius solution. I want you to hear it almost first. THEY HAVE USED A RECORDER…. can you believe it? We know, rocket science, amazing! Absolutely groundbreaking!

Let us be clear. The answer was there all the time. The uncertainty for the witnesses, the uncertainty for the defendant, counsel having to travel to court to deal with an application that had the most rudimentary of solutions.  WAKE UP. SHAME.

DOES ANYONE HAVE ANY IDEA?

Who has set the parameters/guidance for “Listing”, so as to aid them as to which cases are to come out or stay in or is it an arbitrary decision, entirely without guidance? Has it not dawned on anyone in control of budgets and indeed is saying that Resident Judges cannot seek further sitting days, by utilising the queue of Recorders, so that complainants cases are in fact reached, that irrespective of how a case arrives at the Crown court, custody or non- custody, that if a trial is vacated, it has at some point to be listed and meanwhile the cases which are not custody cases are simply building up? We have pointed out before there are more coming cases coming through. Custody cases out rank non custody cases because of custody time limits but they do not go away.

Any guidance is in reality a lion without teeth. Even if the Resident Judge is trying to provide some sort of direction, the system itself as it presently stands is fundamentally sick. Give the Judges latitude. Can a conversation seriously be had about efficiencies when so many cases are coming out? At the present rate non custody cases are going to be kicked into the long grass, the height of which we have never seen.

Trials are important matters with life changing decisions being made on the futures of defendants.

What is going to happen when the promised 20,000 extra policemen actually start detecting real crime that needs to be heard in a court? This wooden blinkered approach cannot remain.

Today, only 24 Recorders are sitting up and down the country. Court rooms continue to lie empty and cases are being put back. Listing dates for serious cases are now in the distant future. We have had the commendable offer by the senior Judge at Aylesbury Crown Court, HHJ Sheridan, who declined to go on annual leave, so that two men in custody would not face an overly long period incarcerated before their trial. The original trial date offered was unconscionably far away. In making this personal gesture, they can now be tried some three months earlier.

Whilst we can all acknowledge such a gesture, is that what we have really come to, Judges not taking a break? We know that counsel regularly have to put up and shut up about arrangements that drive a coach and horse through their personal lives, but this surely is not the answer?

The uncertainty surrounding the listing of cases at the minute is undermining the confidence that ought to be reposed in our legal system.

The answer is investment in the whole of the justice system. The switching off of a few lights is saving nothing.

CAN COUNSEL SURVIVE?

And if one is looking at this from a business case perspective, exactly how is counsel expected to make a living? One counsel has reported to me that they have had ten cases taken out, leaving them out of court with no means of earning an income. Cometh the hour, cometh the man, the tax man cometh. Financial planning is torn apart. Any improvement in fees is obliterated by the unfair and unpredictable way listing is having to operate. Being out of court in this way has nothing whatsoever to do with the vagaries of being at the self – employed bar. Fair competition yes, having the rug pulled out from under your feet, NO.

Please email examples of the hot courting practicethat is beginning to develop. We need your assistance with this.

S28 CASE PROBLEMS – HOW FAR DOES COUNSEL’S ROLE EXTEND?

I indicated that we would touch on this issue and I have had the following raised specifically with me. It addresses the subject of the viewing and editing of interviews.

Prosecuting counsel following the completion of the questioning of the complainant was ordered to attend at court to watch the recording to ensure it was correct. Watching the cross examination took almost 2 hours. There was no ability to pause, rewind or fast forward the recording. Those parts of the recording which required editing were written down and forwarded to the court. Vodafone would not complete the editing because counsel had not written down the exact times, so for example counsel wrote “from the start of the recording to 13.11.52”. Vodafone insisted that counsel write the exact start time. Counsel suggested that it would be more cost effective if the person editing wrote down the start time instead of making counsel go back to court to watch the recording and send the start time. The solution was rejected.

Consequently, counsel spent another 40 minutes in court in order to record the timings in the format demanded. Finally, they had to spend another 30 minutes watching the recording again to check that the editing had been done correctly. To add insult to injury the trial date was then vacated at the request of the defence, to a date which prosecuting counsel could not do.

The whole experience of dealing with the recording took 3 court appearances and numerous telephone calls and emails.

How should this have been remunerated? Should it be a refresher? Is this really counsels role?

If you have had any negative experience with S28, please email us.  Has the reduced sitting impacted upon the date between date of original complaint, cross – examination and then listing for trial?

FEES:

The vote to suspend action has meant that we have been able to engage with both CPS and MOJ.

We are still in discussions with the CPS and appreciate very much, the work and effort that has gone into this exercise. The data sets are detailed and consequently that takes time. There is a further meeting this week and we hope to be in a position to update you soon.

We have continued engagement with the MOJ and indeed there may be a push for more data so please watch this space.

BOOK WINNER:

Congratulations to ANDREW PRICE, DRYSTONE CHAMBERS.
Thank you to all those that took part, there will be more to come.

FILM OF THE WEEK:

CAMILLE CLAUDEL
Given the continued position we are in, this week’s recommendation draws on two of French cinemas biggest stars, Gerard Depardieu and Isabelle Adjani. The film addresses the life of one of the greatest and yet the least known female sculptor, Camille Claudel. It is worth viewing. Give it a chance.

Onwards and upwards