The Secret Barrister

by The Secret Barrister

Which can be problematic. Because while most solicitors wouldn’t dream of misleading the courts, some of their clients make a tidy living from it. A bail application putting up the defendant’s old mum as a willing innkeeper does so on the defendant’s instructions. If mum is unwilling to open the door to her errant, estranged offspring, or if she died five years ago and the address is now a Chicken Cottage, you have a defendant at large, who may be none too easy to locate.

  A few years back, I prosecuted some bail applications brought by a roaming group of youthful Albanians. They had been apprehended by a train guard for not having tickets, when he noticed that all of their tracksuit bottoms were taped around the ankles and bulging alarmingly. The explanation became plain when the police arrived, and recovered sixty phones, belonging to sixty dozing train passengers, from within the boys’ trousers. A contemporary Fagin’s gang, although the profit margins on sixty iPhones is obviously in wild excess of the Artful Dodger’s most improbable fantasies.

  Being, the youths claimed, ordinarily resident at the other end of the country, they wished to offer a bail address in that far-away city. The address hadn’t been checked by the time the application first came before the Crown Court. Nor the second time. In the face of this unexplained prosecution slovenliness, the exasperated judge was urged by the defence to grant bail to the proposed address. The judge ummed and aahhed and appeared set to accede, before looking pitifully at my pathetic, plaintiff face and grudgingly adjourning for yet another Last Chance.

  And it’s a good thing he did. Because hours before the third hearing was due to be called on, police officers belatedly knocked at the proffered address, only to be turned away by an irate elderly lady, who had no knowledge of or connection to any Albanian street gangs, but a despairing familiarity with her address being given by their members to unwitting courts. But for the judge’s largesse in allowing us a final opportunity to do what we should have done months earlier, the defendants would have been bailed, no doubt never to be seen again, and a little old lady would have had to spend yet another evening explaining to G4S security staff why they couldn’t install electronic monitoring equipment in her bungalow. We got lucky. It is not always so. Other judges would have lost patience, and rightly so. Too often, it seems, these are ‘just’ bail apps. In an age of straitened police resources, they’re simply not a priority.

  Notwithstanding the chaotic, slapdash handling of bail applications by the prosecuting authorities at the outset of proceedings, an entirely different mentality kicks in once a defendant has been safely remanded into custody. The one occurrence above all others guaranteed to trigger CPS internal inquiry and managerial recriminations is the Custody Time Limit Failure. All trials are listed within the Custody Time Limits (182 days in the Crown Court). If the trial, for whatever reason, has to be adjourned to a date beyond those limits, the prosecution must publicly apply to extend the CTLs to ensure that the defendant remains remanded until the new trial date. The legal test for extending the CTLs requires that the court be satisfied that the prosecution has acted with ‘due diligence and expedition, and that there is good and sufficient cause for [extending the limit].’15

  So if the need to adjourn the trial is due to CPS error – let’s say they fail, despite repeated requests, to disclose vital material undermining their case until the eleventh hour and fifty-ninth minute – they are unlikely to satisfy the judge of their due diligence and expedition, and you have a ‘CTL failure’, resulting in the defendant being bailed and CPS heads rolling onto serving platters. I use that particular example because that’s what happened to Rio. His trial, at which he was acquitted, ultimately took place a year after I first met him in that dank prison cubicle, all because vital material that assisted his defence was sat on by the prosecution and not disclosed until it was too late for Alan to do anything with it. So the judge granted Alan’s application to adjourn the first trial. And refused the prosecution’s pleas to extend the CTLs, observing darkly that this was a case ‘where the statutory requirements are far from made out’. An ecstatically grateful Rio could be freed; no Jade waiting for him, alas, the strain of his incarceration too much for the long-distance relationship to withstand, but his liberty at least restored, bailed to his mate’s flat to piece his life together again while he awaited his eventual acquittal.

  I was not privy to the fall-out at the CPS, but from experience in my own cases, it would have been significant. A potentially dangerous rapist (as they believed him to be) out on the streets. Enquiries would have been made, reports generated and explanations brutishly extracted for this ugly red blotch on their internal statistics. A far cry from the absence of fuss where a remanded defendant is acquitted. Or where a lazy, borderline application to remand is granted by obsequious magistrates in circumstances that don’t come close to the statutory test. Or even where the defendant gets bail, like my Albanian phone merchants, solely due to the prosecution not doing its job.

  This contrast – the slovenliness of the initial bail application against the seismic import attached to custody time limits expiring – is difficult to explain, but I imagine, as with so much modern CPS policy, it is media-driven. Should a dangerous released suspect do something horrid, it is far juicier a story if the CPS had the bad guy locked up and let him go than if he was never remanded at all due to some woolly liberal judge. Notwithstanding that you will often find, if you scrabble deep enough into the origins of that woolly liberal decision, a prosecution failing lying at its heart.

  Rio’s face as he was granted bail will remain with me until the end of my career. The unrestrained happiness, the rolling tears of relief at being free. The high five he gave an awkward Alan after the hearing. A few months later, I was in my ‘second six’ of pupillage, on my feet and doing my own work, prosecuting bail applications in the Crown Court. On my first such day, I bumped into a senior colleague from chambers, Matthew, in the robing room, who politely asked me what I was up to. When I told him, with an affected insouciance that I thought belied my inexperience (but probably just made me come across as a twit), that it was ‘just a bail app’, Matthew admonished me. Bail apps, he said with a schoolmasterly tone, are the most undervalued hearings in the criminal process. There is no such thing as ‘just’ a bail app. Each is a determination on liberty that can have life-changing consequences for the parties involved. And I thought back to the day that Rio was released, to the intensity, the quality, of his joy at winning his freedom, and I understood.

  And I continue to think back to Rio’s smiling face from time to time. I can’t profess that every one of my bail apps and CTL extensions is conducted with the weight of his memory borne on my shoulders, his visage looming in a cartoon thought-bubble above my head. But there are certain occasions – certain factually similar cases, for example – that fleetingly trigger a recollection of Rio leaving the courtroom. And of how that played out.

  Because, contrary to the prosecution’s fears, once released, Rio complied with his bail condition not to contact the complainant. He obediently attended his trial. And, contrary to their expectations, with Alan’s assistance Rio was acquitted.

  He only attended trial, though, because he was brought in a van. From prison. Where he was a serving prisoner. Because, two weeks after being granted bail, liberated from the moderating influence of the departed Jade, Rio got high on a cocktail of ecstasy, crack and vodka. He took a kitchen knife to the local pub, and plunged it thirty times into the chest, throat and back of a random punter. He was, by the time of his adjourned rape trial, serving life for murder.

  As Matthew said, every decision affecting liberty matters. Life-changing consequences follow. Ensuring that the test for withholding bail is properly exercised is as crucial as ensuring that, once a dangerous individual has been remanded, the prosecuting authorities act expeditiously to bring the case to trial. The centrality of the prosecution obeying court orders and complying with its obligations to timeously serve evidence and disclose undermining material cannot be
understated. Failure can have shattering consequences.

  Unfortunately, in our modern, cash-starved and understaffed prosecuting authorities, failure does not start at the beginning of proceedings amid the chaos of the first appearance and finish in the fog of ramshackle bail applications. As serious cases progress to the Crown Court and start being prepared for trial, a culture of error can take root. And, as we shall see, when it does, the stakes can be devastatingly high.

  4. Watching the Guilty Walk Free: Prosecuting on the Cheap

  ‘The tipping point was reached in 2015, and it was one of the reasons why I decided that I didn’t want to be part of the service, because I felt it was asking too much of the people that I have so much respect for – the people I work with . . . You’re asking the more junior staff, less experienced staff, to do more with substantially less in a climate where they’re constantly under scrutiny.’

  Nazir Afzal, Former Chief Crown

  Prosecutor for the North-West, 20151

  Amy Jackson was fourteen years old when she first met Rob McCulloch, then a brooding twenty-something fresh out of prison, at the bus stop round the back of her care home. She was fifteen years old when she moved in to his squat; a few months older when Rob, to ‘break her in’ on her sweet sixteenth, first injected her with heroin. She was sixteen years and one day old when he first pinned her against the sofa and tore clumps of hair out of her scalp – the penalty for her reluctance to have sex with Rob’s dealer as part-payment for her birthday present. For her seventeenth birthday, she received a diagnosis of hepatitis C; whether as a consequence of the needle-sharing that had become her routine, or a souvenir of the many occasions she was traded by Rob to sate their collective addiction, she couldn’t and didn’t care to know; the only certainties lay in the knowledge that this, her life with Rob – and importantly her obedience – was what it was to be loved. And for every birthday thereafter, and most unbirthdays in between, she would know what it was not to be loved; to disappoint Rob by not pushing enough tenths (if it was crack or heroin that day), or grams (if it was coke); or, most unforgivably, to betray his indiscretions by exposing her mottled face and missing teeth to the world, and worse her mum, who, on rare occasions of sobriety, would issue indignant threats to call the police. And whether by dint of the rug of human hair that collected under the broken lamp by the sofa, or the recognition that her dependencies, both chemical and emotional, had no other means of satisfaction, Amy learned to be grateful for her lot, to embrace the protection of Rob’s love – to remain dumb when police officers attended the squat on a concerned neighbour’s alert, or when a hospital trip for sutures could not be avoided, to shake her head and mutely deny the undeniable – and accept the bruising of a good day as preferable to the snapped arm of a bad one.

  She was twenty-two when Rob really lost his shit. A careless retort heralded a reign of punches, heavy thuds to the mouth that repeated for whole minutes, until she couldn’t see or swallow for the blood. Dragged by her hair like a ragdoll out of the house and tossed into the front garden, lifting her head she could just make out the blurry figure of Rob taking a run up towards her head, like taking a penalty kick. And then everything went black.

  Later she would learn that the intervention of a passing taxi driver had saved her from what might have followed, chasing Rob away before dialling for an ambulance. And when, lying prone in her hospital bed that night, the police asked if she wanted to tell them what had happened, Amy nodded. And then she did. The whole history. Half a lifetime of brutality distilled and poured for the attending police officer, each revelation forged with the acknowledgement that next time, in the absence of a good samaritan, Rob would probably kill her.

  Rob was arrested. He was interviewed by the police. He answered each question about his involvement – from the soft-ball opener, ‘How do you know Amy Jackson?’ through to the, one might think, eminently answerable, ‘Have you ever assaulted her?’ – with a calm, ‘No comment.’ Rob was duly charged with inflicting grievous bodily harm with intent, the most serious offence of violence short of attempted murder, punishable with life imprisonment. His case was sent to the Crown Court, and I was the barrister instructed to prosecute the trial.

  The competent prosecution of criminal offences is a fundamental term of our social contract. The power to investigate and prosecute alleged offences is, in all but the rarest cases, removed from the private individual and nationalized. The state investigates, arms the prosecutor, determines and provides the venue for litigation and hands down sentence on the guilty. In return, citizens are entitled to expect that criminal prosecutions are properly financed and capably litigated. I have been raised as a true believer in that arrangement – of ensuring that serious criminal allegations are professionally and independently litigated based on their objective merits, rather than, as in the past, on the wherewithal, whims or capital of the individual complainant. When you see first-hand the desperate vulnerability of so many victims of crime, predominantly drawn from the same poverty-stricken estates as their tormentors, you quickly become convinced of the advantages of forcibly subcontracting prosecutions to a competent, impartial state agency.

  As someone regularly instructed to prosecute on behalf of the state, however, I find it difficult to constrain my anger at how frequently and flagrantly that contract is breached; not for want of effort by the good men and women who devote their working lives to the creaking Crown Prosecution Service, but for a chronic lack of staff and funding abetted by successive cynical governments.

  Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence being lost, disclosure not being made, victims being made to feel marginalized and millions of pounds of public money being wasted. And, as a consequence, every single day, provably guilty people walking free.

  Before looking at my involvement with Rob McCulloch, it is worth revisiting how prosecutions are supposed to be handled. As we saw earlier, between 1880 and 1986 all prosecution decisions were made by the local investigating police force, who took responsibility for both investigating and prosecuting alleged crimes, until the creation of the CPS in 1985, designed to ensure higher quality, consistent prosecution decisions nationwide.

  The past decade of budget cuts has seen an extensive handover of charging decisions from the CPS back to the police, and over the years various other public bodies have been vested with the power to initiate prosecutions,2 such as local authorities, the Department of Work and Pensions, the Environment Agency and the Health & Safety Executive. There is also still a right for an individual to bring a private prosecution3 (as is exercised by the RSPCA, for example, and as was used in the unsuccessful prosecution of the killers of Stephen Lawrence in 1996). But the overwhelming majority of prosecutions in England and Wales – 588,021 in 2016–174 – are brought by the CPS.

  When someone, such as Rob McCulloch, is charged with an offence, the typical life-cycle of the prosecutorial process should look something like this:

  — The police receive a complaint about a criminal offence and investigate all reasonable lines of inquiry, including (usually) interviewing the suspect under caution. Investigative advice can be sought from a twenty-four-hour ‘CPS Direct’ helpline.

  — Having investigated, the police apply the two-stage test set out in the Code for Crown Prosecutors5 – the ‘Full Code Test’.6 Firstly, does the evidence establish a ‘realistic prospect of conviction’? Secondly, is it in the public interest to prosecute?

  — If the police believe the Full Code Test is met, they can either charge the suspect themselves if the allegation is a minor summary offence7 or, for more serious cases, such as Rob’s, the police must refer to a CPS lawyer for a charging decision (applying the same test).

  — The suspect is charged.

  — The CPS receives the police file, reviews the case and prepares a file for the fir
st hearing before the magistrates’ court.

  — If the case is sent to the Crown Court, it should have allocated (i) a CPS caseworker to deal with the administrative aspect, to ensure that evidence is served, to liaise with the police and so forth; (ii) a CPS lawyer to review the case and manage the legal side, such as disclosure (about which more later) and drafting legal applications; (iii) a barrister or solicitor-advocate to advise on the evidence and present the case in court.

  — The evidence should be provided by the police to (i), (ii) and (iii) above, and the components of this well-oiled machine should grind in harmony to ensure that everything is ready for trial.

  — Finally we have a trial, at which all relevant evidence, which has been served on the defence in good time, is put before the court, and a jury returns a fully informed verdict as to whether the allegation is proved beyond reasonable doubt.

  We’ve already looked at the climatic chaos of the magistrates’ court, but glitches arise even before the first appearance.

  For starters, the file that arrives in the magistrates’ court – nowadays a digital file accessed by the CPS magistrates’ prosecutor on an electronic ‘Case Management System’ (CMS) – is often not only incomplete, but sometimes hasn’t even been looked at prior to that first hearing. ‘Why does this straightforward shoplifting of meat [it’s always meat, usually steaks as these can be sold on down the pub for a few quid] also have a public order charge attached?’ I’d be asked as an agent prosecutor juggling the list, and my response would frequently be a wide-eyed shrug as I waved my empty file at the bench and defence.

  The Code for Crown Prosecutors and the Director’s Guidance on Charging require that the CPS review all cases, in particular those where the charging decision was taken by the police, before the first hearing in the magistrates’ court. The reason is self-evident – the police are not lawyers, and sometimes make mistakes in applying the law and the charging tests. Under-pressure CPS charging lawyers can and will also make errors in judgment that need nipping before some poor sod is standing up in court being asked to justify why a defendant has been charged with the long-repealed offence of assault with intent to stop the free passage of potatoes.8 And mistakes are often made – an inspection in 2015 found that nearly one in five police charging decisions, and one in ten CPS lawyer charging decisions, were wrong. These were not just a bit wrong, or technically wrong on an esoteric application of complex legal principles – but fundamentally wrong about basic points of law: