The Secret Barrister
Page 9
The net result of these reforms should terrify: an enormous influx of serious criminal cases subjected to the second-class treatment of the magistrates’ courts, hammered through the sausage factory of summary justice by our jolly, willing amateurs, and with enormous restrictions on the right to appeal. House burglaries, assaults causing grievous bodily harm, semi-complex frauds and sexual assaults presently deemed too serious to be dealt with summarily will routinely be the stuff of magistrates’ lists. Prosecutions warehoused and unprocessed until tardily dumped on agent prosecutors the night before trial; defendants – innocent men and women – wrongly convicted due to failures to review cases or complete statutory disclosure. For the latter, no guarantee of a re-hearing. And, for the vast majority of all concerned, no hope of a qualified judge overseeing the case to spot the errors and put things right.
Magistrates, and the quality of justice that their courts engender, are very much The Future. This hangover of thirteenth-century parochial peace-keeping, far from being gently put out to pasture, is re-engineered as our turbocharged, armoured vehicle of justice for the new millennium. And, try as I might, I cannot accept that the arguments in favour withstand the slightest scrutiny. Why is our focus in summary proceedings not on the quality of justice or the fairness of the trial procedure, but trained remorselessly on turnover of cases? Why is ours the only legal system in the world that empowers volunteers to send their fellow citizens to prison? Why do we not only accept but prize the resolution of pure matters of law by non-lawyers? I accept that in straitened times – even in good times – we probably can’t afford to universally apply the Crown Court model of a legally qualified judge directing a lay jury; but the next best thing surely isn’t to have a self-selecting, homogeneous lay jury one quarter of the size and give them the judge’s function of deciding complex arguments of law. Rather, should we not just concede the facade of lay participation and wholly professionalize summary justice, either by hiring District Judges for all cases, or, alternatively, enlisting trained, professional lay assessors, selected for their tested and proven skills of critical analysis and logical reasoning rather than their public spirit?
The answer, I fear, is because 800 years ago the state wanted low-level trouble and strife dealt with quickly and cheaply. It mattered not at that time, when individual rights and the presumption of innocence were half a millennium away from public consciousness, whether justice was being administered fairly, so long as it was being administered. In the twenty-first century, when no government worth its political salt will voluntarily pledge expenditure on something as headline-unworthy as the lowest criminal courts, the same attitude persists. It’s just the underclasses who are affected. Except, of course, it isn’t. It’s anyone who is accused of a criminal offence. Anyone who witnesses an offence. Anyone who is a victim. And anyone who values liberty.
On liberty, it would be easy to assume that such weighty determinations only kick in after the formalities of a trial and a guilty verdict; but that would be mistaken. Whether your criminal case remains with the magistrates or is destined for the comparative luxury of the Crown Court, the issue of bail – of your immediate freedom – will often be addressed at that very first appearance before the magistrates, in those same conditions of maniacal disorder.
Let’s look at how we deal with the decision of whether you spend the months awaiting trial in your own bed, or bunking up with a new friend in one of Her Majesty’s festering prisons. Let’s take a quick peek at applications for bail.
3. Imprisoning the Innocent: Remand and Bail
‘Those on remand . . . are not inside for long enough for [work and education] programmes to make a difference – but they are there long enough to lose their jobs, their family relationships, and even their homes. This can push someone off the straight and narrow for good.’
Home Secretary David Blunkett,
Observer, 3 February 20021
The first question fired at you as you enter the yellow-stained cells in the bowels of the magistrates’ court to meet a seasoned client for his first appearance is invariably the same: am I getting bail? That this is often the opening gambit ahead of any protestation of innocence is an indicator of the premium placed upon this decision by veteran defendants. And for good reason. Whether you spend the 182 nights preceding your trial in the comfort of your own bed, or count them locked in a bottom bunk with your head next to an open steel toilet blocked with the shit of the top bunk’s incumbent is a meaningful dichotomy no matter how many times you’ve suffered a remand in custody before.
Of course, not all defendants are produced via the cells for their first appearance. Most arrive under their own steam, having been charged and bailed at the police station or summonsed by post to attend, and will in all likelihood leave through the same door at the end of the morning, bail notice in paw commanding their voluntary surrender at the next hearing. But, as a general rule, if the police thought the allegations serious enough to detain you at the station overnight pending your first court appearance, they, and the Crown Prosecution Service, are probably going to be asking the magistrates that you be escorted from court in handcuffs to await your fate at one of Her Majesty’s less opulent guesthouses.
The decision on whether to grant bail will initially be taken by magistrates at the end of the first appearance, which will usually be held within a few weeks of being charged, unless the police remand you in custody post-charge in which case your first appearance will take place the following day. Often the prosecution will assent to bail, either unconditionally or on agreed conditions, and the court is merely rubber-stamping. If bail is opposed, the prosecutor stands up and regales the bench with their grave misgivings over bailing this dangerous flight risk of a man with an appalling record and evidence against him strong enough to suplex a blue whale. And the defence solicitor or barrister then humbly submits that the prosecution’s concerns are entirely ill-founded, or, alternatively, can be assuaged by the imposition of ‘stringent bail conditions’ (a stock legal phrase – bail conditions are always stringent, in the same way that any lawyer in the news is always a ‘top lawyer’).
The magistrates then huddle together to discuss in stage whispers to what extent the accused – who, we must remember, is at this stage innocent – should have his liberty infringed. Will he be one of the 70,000-odd people remanded in custody each year, at an estimated cost of £429 million?2 Or will he be bailed with a curfew, electronically tagged and monitored, on the condition that he report thrice-weekly to his local nick, in order that his good behaviour and continued presence in the jurisdiction be maintained? If he’s unhappy with the magistrates’ decision, he can appeal to a Crown Court judge,3 but if the Crown Court judge says nay, then barring a significant change in circumstances he’s staying in prison until trial. This period can be up to seventy days if a magistrates’ trial4 or 182 days – six months – if a Crown Court trial, and can be extended further in certain circumstances.
The concept of bail stretches back to the Middle Ages, the word being derived from the old French for ‘custody’ or ‘jurisdiction’, and the verb bailler – to take charge of. The presumption in law today is that a defendant will be bailed. Our venerated tradition of habeas corpus – Latin for ‘you may have the body’ – ensures, through permitting individuals to challenge in court the legality of their detention by the state, that liberty is only deprived in accordance with the law. Notwithstanding the efforts of various monarchic rogues to insist that the say-so of the king was sufficient cause for detaining those falling out of his favour, Parliament acted to prohibit, through a succession of landmark legislation – notably the Habeas Corpus Acts of 1640 and 1679, and the Bill of Rights 1689 – the arbitrary detention of people accused of crimes. Although not reasoned as such at the time (the presumption of innocence being an articulation of the late eighteenth century), this principle dovetails neatly with our modern golden rule that the accused is innocent until guilt is proven. Innocent people should only
be locked away where it is justified – which put loosely is where a court finds substantial grounds for believing they will fail to attend court, re-offend or interfere with prosecution witnesses. The importance of bail decisions is easy to underestimate in the abstract; in the flesh and blood of criminal cases, its significance can become horribly tangible.
One of the very first defendants I met when training as a pupil was Rio. I was in my second week of my ‘first six’, the first half of pupillage in which you obediently follow your pupil supervisor like a duckling, greedily absorbing knowledge and experience from their daily court grind. Alan, my pupilmaster (as he, a weathered refusenik to anything that might be perceived as political correctness, insisted on being called), had a conference at the local prison with a new client. ‘Conference’ is the industry term for a meeting. By referring to it as a conference (or ‘con’ for short), we succeed in our twin aims of linguistically alienating outsiders and making what we do sound more impressive than it actually is. It was thus that, in the blustery October twilight following a fruitless day at court waiting in vain for Alan’s trial to be called on, I had the pleasure of meeting Rio.
Rio was charged with multiple counts of rape, alleged to have been committed against his long-term partner, Lori, over a period of several years. She had fled their dysfunctional, alcohol-sustained relationship with their infant son the previous spring, and, upon finding refuge at a friend’s home, had recounted in lurid detail the variety of physical and sexual abuse she had suffered at Rio’s hands. Following charge, Rio had been refused bail, both by the magistrates and, upon appeal, by a Crown Court judge, and this, along with a series of other perceived slights, lay behind his decision to dispense with his previously instructed counsel and direct his solicitor to ‘find me some other cunt’. Alan, with me as his willing lackey, was that cunt.
Perhaps surprisingly to the uninitiated, Rio would not have known exactly what happened at his Crown Court bail application. He would have been present at the magistrates’ court, watching forlornly from the dock as the magistrates, having sent his case to the Crown Court, took all of ten seconds to consider his solicitor’s submissions and refuse bail, but a bail appeal to the Crown Court usually takes place in private, without the defendant. As a barrister, this represents most of my involvement with bail applications. Occasionally, if there’s an important client with a juicy-looking Crown Court case who’s up for his first appearance, the solicitors will ask that the barrister go along to the mags to make a good impression, but mostly I am prosecuting or defending applications before a Crown Court Circuit Judge, in his or her chambers. ‘Chambers’, in the judicial context, refers to a judge’s private room where he robes and reads his papers. At one time the bail application would actually take place in those quarters, but nowadays the court clerk simply announces, ‘Court as chambers,’ which means the court is cleared of everyone save the advocates and the judge, who then all take off our wigs and pretend that we’re not in court at all. If there were a less strange way to explain this, I promise I’d do so.
The absence of the defendant from his own hearing has a strange effect. On the one hand, it makes your job a little easier when defending. Unlike in the magistrates’ court, where you may be trying to persuade an unimpressed bench of your client’s bailability, punctuated by helpful yelps from the dock (‘Tell ’em I’ll go on tag. I’ll do fucking anything!’), no such distractions prevail here. The judge is forced to imagine how unappealing your client is, rather than have the proof of the pudding shouting racial epithets from the back of court.
But it also means that the defendant is shielded from the reality of the cursory treatment that his bail application may receive. An observer might suppose that bail apps carry the lowest consequence in the court list: up to half a dozen hearings are squeezed into the top of the daily list, to be rattled through in succession at 10 a.m. before the court starts its proper, meaningful business. Although they can take hours to prepare, the hearings are usually short, sometimes no more than a few minutes a pop – often rightly so, because of the straightforwardness of the argument, occasionally less rightly, because of a trigger-happy judge shooting from the hip or an advocate implicitly (or explicitly) conceding his client’s cause. The fees are low (£46.50 plus VAT if you’re prosecuting, slightly more if defending), meaning that the barristers involved will need to take on several bail apps – or other types of case – if they’re going to turn a profit that day, diluting further the significance of a given application.
And this all contributes to a feeling of remoteness, of insubstantiality, which, I sometimes think, can make it easy to forget the importance of what we’re dealing with. I am guilty of it. I know from experience that others are. Often, particularly when prosecuting, you will be instructed to appear on the bail application alone, and will never see the case again. The defendant is just a transient name, never to be matched to a face. Our submissions, our pleas on his behalf or against his right to liberty, are delivered in the formulaic legal standard – ‘grave concerns’ tutted by the prosecutor, ‘stringent bail conditions’ proffered by the defence – from the comfort of an oak-panelled courtroom many miles from the crumbling Victorian prison in which the subject being discussed is bricked up, waiting desperately for the screws to tell him when the fateful fax from the Crown Court has landed. His destiny is determined by the application of abstract concepts in an academic analysis of ‘competing interests’, by strangers cloaked in black, noses in their weighty textbooks or against the screens of their iPads.
It’s easy to understand how alienation and frustration can set in. It had for Rio. He had been remanded for nearly five months by the time Alan and I pulled through the prison gates in Alan’s ‘vintage’ Vauxhall Vectra, and he would serve another month or so until trial. The grounds for the court refusing bail appeared, to my barely trained eye, reasonable enough. Rio’s previous record made for concerning reading. Domestic violence was his stock in trade. He had not only been convicted of assaulting two previous partners, but had in each case gone on to breach the restraining order that the court had imposed. In unrelated criminal proceedings, he had failed to surrender to bail on three occasions. Having regard to this background, and the double-figure prison sentence that Rio was looking at if convicted of the rapes, the court had little trouble in finding substantial grounds for believing that if bailed Rio would either interfere with witnesses – by tracking down and exerting his toxic influence upon Lori – or fail to surrender to court for his trial.
As for the recent allegations, they were all lies, I had learned from Rio’s written instructions in Alan’s brief. He never forced Lori into sex. He wouldn’t. He didn’t need to; he got all the action he wanted, from all manner of local lovers. (Upon meeting Rio, his missing teeth and impressive, two-seat encompassing girth cast this strand of his instructions into dubious relief, but I suppose the heart wants what it wants.) In fact, it was one of these lovers, and specifically her presence in Rio’s bed when Lori returned home early, that lay behind the outpouring of false allegations from the conniving, scorned complainant, well aware that Rio’s disreputable history would bolster the credibility of her false allegations.
As we were escorted across the various levels of prison security – passports scrutinized, fingerprints recorded, outer clothing removed and bodies frisked – and trudged through a succession of giant, steel-wrapped locked doors, leading ultimately to the meeting cubicle, I prepared myself to hear Rio repeat these denials ad nauseum and in detail. After all, I thought, that’s what I would do in his shoes when meeting my new barrister.
But that wasn’t what Rio wanted to talk about. Instead, he wanted to use his permitted forty-five minutes to talk – and at times shout and scream and bang emphatically on the screwed-down table – about his life outside. And of the unjustness of being sequestered away from it for something he hadn’t done ‘this time’. He wanted to tell Alan about his new girlfriend, Jade, who, aside from the three-month
overlap with his relationship with Lori, had pointed him towards the straight and narrow. Because of her strict edicts about drugs around her three kids, Rio had packed in the Colombian marching powder, and cut back significantly on his drinking, and had unsurprisingly found that the familiar sudden urge to violence at the slightest provocation was dimming. Plus, he hadn’t grafted (stolen) the whole time he’d been with her. Most importantly, she had stood by him through the allegations, through the lies, because she knew that, whatever his faults, he would not do the things that Lori claimed. She believed in him.
And he was worried because, although Jade had visited him every week for the first three months, the visits had lately become irregular. When she did come, she appeared distant. And he had become paranoid, and she resistant at his suspicious questioning, and round and round they span. And he was terrified that she was losing interest; losing faith. And he missed her. And he missed his three-year-old son, who he hadn’t seen for months, ’cos he was in the care of that lying bitch Lori – ‘Christ knows what she is telling him about me; about where I am, what I’ve done.’ He wanted to talk about his job, running deliveries for a mate’s building supplies company. It wasn’t much, but it was work. Work that he hadn’t been able to do for most of the year. Work that had probably now gone to somebody else.