The Secret Barrister
Page 12
[S]ome failures related to very common offences, such as assaults, burglaries and robberies and a number arose from failure to apply the law properly to identification evidence, forensic evidence, self-defence and joint enterprise. These are offences and issues that lawyers deal with on a daily basis and should rarely result in errors.9
A later report in 2017 found that nearly half of CPS precharging advices sampled were still failing to fully meet expected standards, so that initial post-charge review is vital. But around one in six cases were called on in the magistrates’ courts – that is to say defendants were brought into court and had criminal allegations put to them – without a CPS lawyer ever having read the file or considered the charge. Where there had been an initial review between charge and the first hearing, 39.4 per cent failed to meet the required standards.10
In other words, if you are accused of a crime, there is roughly a 50 per cent chance that the prosecution hasn’t fully prepared for the first court hearing. And this sets the tone for what follows.
For years, many Crown Court cases didn’t have an allocated CPS caseworker. The introduction of the digital case system in 2016, which aimed to take all Crown Court cases online as part of long-overdue efficiency reforms championed by Sir Brian Leveson, included a requirement that CPS caseworkers and lawyers be identified. In most cases this is observed, albeit the CPS Inspectorate notes ‘there is limited evidence of true file ownership’.11 Prior to 2016, at the time when Rob McCulloch’s case flew into my pigeonhole, it was seldom that any individual would be identified as responsible, save for in particularly serious cases. So there was no caseworker named on the brief in Rob McCulloch’s case.
A brief word about ‘briefs’. The brief in a case was traditionally a paper bundle, wrapped in pretty ribbon (pink for defence briefs, white for prosecution) and provided to a barrister by the solicitor instructing them – in this case, the CPS lawyer. It should contain all the papers that the barrister needs to advise on the case and prepare it for trial. Since 2016, we receive briefs by email, with all the evidence in Crown Court cases uploaded to the digital Case Management System.
When prosecuting, your brief should include, first and foremost, the evidence – all the witness statements and exhibits that make the prosecution case, including, for example, photographs, CCTV footage, medical notes, transcripts of a defendant’s police interview, mobile phone records and bank statements. It should contain the indictment – the official Crown Court document setting out the charges against the defendant. It should contain documentation from the police – including a summary of the allegations, the charging decision, the charging CPS lawyer’s advice and views, and any correspondence. It should have been reviewed following the magistrates’ court appearance, and the reviewing CPS lawyer’s views should be included. There should be a Schedule of Unused Material – a document listing all material generated in the investigation of the case which is not relied on as prosecution evidence. The contents of the schedule should be reviewed by a CPS ‘disclosure lawyer’ to see whether there is anything there that might assist the defence or undermine the prosecution. If there is, the defence are entitled in law to have it.
Finally, and, you might feel, quite importantly, the brief should include instructions from the CPS lawyer, telling the barrister what the case is about, what issues they’ve identified and are in need of addressing, what evidence is still outstanding, what legal applications they anticipate we may need to make to the court, whether there are any difficulties with the case that may not be obvious – for example the police have learned that a witness has gone missing – and whether there is anything in particular on which the barrister’s advice is required.
I can’t speak for why no one had typed any instructions on my Rob McCulloch brief, but if pushed I’d venture that it’s the same reason that charging decisions aren’t reviewed: that evidence is served late in almost every case; that in less than 25 per cent of cases do the police and CPS fully comply with their statutory disclosure obligations (meaning that potentially exculpatory material is not given to the defence);12 that court orders are regularly not met; and that Rob McCulloch’s case would take the course it ultimately did. And that is down to the simple fact that over the last eight years, the CPS has lost almost a third of its workforce.13 One quarter of prosecutors – many of them senior and experienced – have been sacrificed through voluntary redundancy schemes, which themselves have reportedly cost in excess of £50m,14 in an aim to meet expenditure cuts of 27 per cent imposed since 2009–10.15
And this was far from an organization that ran like clockwork prior to 2010, nor some flabby public body from which giant globules of fat could easily and painlessly be liposuctioned by HM Treasury. The Royal Commission on Criminal Justice offered the observation:
We have been told . . . that because of budgetary constraints, the police may decide not to send samples collected at the scene of a crime for scientific analysis . . . There are also complaints about the quality of service provided by the Crown Prosecution Service. No one disputes that at its inception the CPS was seriously under-resourced and even now individual prosecutors may be required to undertake a heavier caseload than is consistent with the ability to prepare all cases thoroughly.16
That was in 1993.
Anyway, Rob McCulloch. Ordinarily, faced with an absence of contact details and instructions, and having learned from grim experience that the CPS switchboard will either ring out or reroute you through nameless call-handlers on a loop until you give up, I would either lazily ask my clerks to ring around the CPS to find someone who was willing to take ownership of the case and speak to me. Or I would call the caseworker whose direct dial I have saved in my phone for such an emergency; someone who had nothing to do with this case, but who I knew would obligingly take the time to do some digging and find some answers for me.
So I rang Megan. Megan had been a caseworker in the CPS for about fifteen years. She was undervalued, overworked and almost certainly despicably underpaid for the quality and importance of what she did. We had worked on many cases together over the years, and, however tight the institutional manacles in which she was required to perform an increasingly onerous and underappreciated task, she remained dedicated, warm and professional. And she is far from alone. This is the paradox of the CPS, and why, in spite of my railing, I still fervently believe there is hope.
For while it is possible to caricature the CPS institutionally as the Peter Principle17 in action, below the executive and senior management hierarchy there are many, many wonderful and hardworking men and women. Lawyers, caseworkers and administrators who do give a damn. Who recognize the constitutional magnitude of an operative prosecution service, who aspire to make a difference and who despair at the vicious circle of cuts and inefficiency that renders their working life a cruel pastiche of Groundhog Day, only inverted so that they are Ned Ryerson and the government is Bill Murray, punching them day after day after day in their stupidly optimistic faces.
I work alongside them daily. The caseworker who, battling with IT systems that don’t function, is required to be in literally four courtrooms at once – each courtroom listed with several cases, each case marked with a dozen problems – valiantly attending to the cries of four judges and a gaggle of prosecuting barristers demanding answers to questions that should have been on the brief, which has been left blank by some other caseworker in the office with their own corresponding abomination of a workload. I’ve seen these good public servants break down in tears at court at the Sisyphean trials of their thankless job. I have shuffled through the grey CPS offices for conferences with lawyers and inhaled the sprawling, groaning misery piling up on the hot-desks of talented professionals who find themselves dumped with two new cases for every one they manage to clear.
I’ve seen some of the best people leave, seizing their golden ticket to another civil service post where there’s a fighting chance of managing their caseload, without the stress of trying to realiz
e the impossible dream of running a national prosecuting agency for less than it costs to give free television licences to pensioners.18 And, inevitably, I’ve seen a few who are simply past caring. If it’s not possible to do the job well, why bother trying?
Fortunately, Megan had not yet joined the queue for the door, although it is surely only a matter of time until she realizes how talented – and how wasted – she is. And she could see on the Case Management System that, while there hadn’t yet been a caseworker or a lawyer allocated to Rob McCulloch’s file, there were some notes providing a little case history that she could send me.
The history was somewhat tortured. I had suspected that this was one of those cases that might have spent a little time with the CPS in-house before they decided to instruct independent counsel, and so it proved. R v McCulloch – ‘R’ standing for ‘Regina’, as standard for all cases prosecuted in the Crown’s name – had been bounced between the CPS’s employed advocates over two pre-trial hearings already, and the defendant still hadn’t even been arraigned (asked to plead guilty or not guilty). Presumably the CPS had hoped that the evident difficulties would dissipate and they might manage to squeeze a guilty plea out of a seemingly guilty defendant, before realizing how much trouble the case was in and frantically briefing it out to independent counsel; for muggins here to step into the breach with a tin hat foisted atop my wig, a paper captain to go down with this breached, doomed ship.
Why was this case in trouble? Well, for the prosecution to prove an allegation of inflicting grievous bodily harm with intent (to cause grievous bodily harm), three elements are required. Firstly, that the defendant unlawfully (i.e., not in self-defence) assaulted the complainant. Secondly, that the defendant caused grievous bodily harm – explained to juries as ‘really serious harm’. And thirdly, that the defendant intended to cause really serious harm; that is to say he didn’t, for example, throw a punch intending to cause minor harm, perhaps a black eye, and accidentally shatter the victim’s jaw. And to prove these types of cases, you need, as the bare minimum, two types of evidence.
One, you require evidence that the defendant assaulted the complainant. This would usually be a witness statement from the complainant, but it might alternatively or additionally include statements from others who witnessed the attack, or sometimes CCTV footage. In this case, Amy was the only witness to the assault, the taxi driver having fled, untraceable, when the ambulance arrived. And two, you need medical evidence from a doctor setting out the injuries that were sustained.
Amy had sustained a multiplicity of injuries in the course of the assault. She had suffered a fracture to the left wrist, a fractured eye-socket, a broken jaw and extensive bruising and grazing where she had been dragged through the flat and out to the front garden. And she had given her account of what had happened to the police.
But I know this – and the details of the assault and Amy’s history as set out at the beginning of the chapter – only because it all appeared on my brief in the MG5. This is the document we encountered earlier, composed by the police and (theoretically) containing a precis of what the evidence shows.
The problem was that the actual evidence itself – the statement presumably taken from Amy and the medical records from the hospital – was nowhere to be found on my brief. Now, evidence not appearing on a prosecution brief is far from unusual. Often it will exist on the CPS computer and will just have been missed off the brief. Other times it will still be in the possession of the police, who upon prompting will forward it to the CPS to pass to the barrister. But it became apparent upon reading the notes of the previous hearings by the in-house CPS advocates that, in this case, the evidence had simply . . . gone. It had never been served on the defence. It had never even reached the CPS.
And the Crown Court, or to be more precise two Crown Court judges, had granted the prosecution successive extensions of time for this evidence to be served on the defence. Twice the case had been listed for Rob to be arraigned (to enter his plea of guilty or not guilty), and twice it had been adjourned because the rudimentary evidence wasn’t available. Christ knows where it had gone, or alternatively why it hadn’t been obtained. Clearly Amy had given a lengthy account to someone, as the details appeared on the MG5. Likewise, someone somewhere – either the officer completing the MG5 or the person feeding that officer the information – had seen the medical records, or taken a statement from the hospital staff. Similarly, the MG3 – the document completed by the charging CPS lawyer – referred to the same material; although again, it was unclear whether the CPS lawyer had actually seen the evidence, or had simply assumed that the contents of the MG5 were correct. This stuff, I ranted to an entirely blameless Megan, doesn’t just spontaneously appear.
So this evidence was available. It had to be. And this is presumably why judges had given the CPS several chances to get hold of it. Even though courts are nowadays required to resist indulging prosecution errors, in a serious case like Rob’s, where it should simply be a matter of finding out who has a few documents, Crown Court judges will generally allow the Crown a little latitude. But tracing the history of the case through the hearing notes, it was clear that there was a blockage somewhere. It was suggested, in an internal email that Megan dug out and forwarded to me, that the police had in fact never taken a formal statement from Amy; that what appeared in the MG5 reflected the account she had orally given an officer from her hospital bed, but this had not been put into the form of an admissible witness statement. To compound matters, it appeared that the police pocket notebook (PNB) in which this first account had been recorded had gone missing.
Nevertheless, this should have been surmountable. All the police needed to do was allocate an officer to go to Amy’s address and take a statement from her. And then, on their way back to the station, pop into the hospital and grab a copy of her medical records. And finally, scan those documents onto the police electronic ‘tree’, and ping them across to the CPS to serve on the defence.
Indeed, the notes suggested that the CPS advocate at the conclusion of each of the earlier hearings had sent reminders to (unidentified) caseworkers with clear instructions to tell the police to do just this. Yet, on each following occasion, the advocate had had to stand up in court and tell the judge that it had not been done. On the most recent occasion, the defence had indicated, at the invitation of the exasperated judge, that at the next hearing they would be making an application to dismiss the charges.
An application to dismiss can be made by a defendant at an early stage in proceedings, after the prosecution have served their evidence, and before the defendant has been arraigned – asked whether he pleads guilty or not guilty – to the indictment (the Crown Court charge sheet). If it appears to the judge that the evidence against the defendant would not be sufficient for him to be properly (i.e. safely) convicted, then the judge must dismiss the charges, and the case is over.19 Theoretically, applications to dismiss should rarely succeed if the CPS has properly applied the evidential test when charging. It’s worse than an acquittal after trial, where a jury may well feel there was a good case against the defendant, but not quite enough to make them sure beyond reasonable doubt. It’s worse than a judge stopping a trial at the end of the prosecution case having found that there is ‘no case to answer’, where the prosecution can at least tell themselves that the problem lay with the live witness evidence. A judge ruling against the CPS on a dismissal is saying, ‘Your evidence is on its face so weak that I’m not letting you take this case any further.’ It is the courtroom equivalent of your boss not merely criticizing that report you submitted, but setting it on fire in public and taking a crowbar to your fingers to ensure you don’t try to do it again.
It’s for that reason that, I understand, successful applications to dismiss are viewed particularly dimly by CPS statisticians. And the fear of a dismissal in Rob’s case is why, I assumed, the CPS had given up juggling this hot potato and batted it out to independent counsel to either find the solution or
take the fall.
Here, as is common, the threat of an application to dismiss had been brandished by the judge as a cattle prod to spark the CPS into life. If you don’t get the evidence, the judge was saying, I’ll have no choice but to put this case in a rock-filled bag and toss it in the river. The judge had known that often the words ‘possible application to dismiss’ on the CPS record sheet have a miraculous stimulant effect on the internal whirrings of the prosecution engine, and had listed the case for the hearing of such an application, although the date of this hearing was missing from my brief.
‘When,’ I asked Megan, now the de facto caseworker and patiently picking up my third call of the afternoon, ‘is this application to dismiss?’
‘One moment,’ as she scrolled through the CPS record sheets. Each court hearing is supposed to be attended by a caseworker to complete a record sheet of any court directions, dates of future hearings and other relevant information, which are uploaded to the CPS’s case management system. Due to the current, financially mandated practice of allocating lone caseworkers to multiple courtrooms, commonly a caseworker will not in fact be in court to hear the case take place, and will be reliant on second-hand information from the advocate as to what directions have been made.