After twenty minutes of grappling with the system, Megan was able to discern that the hearing was in three days’ time, and that a memorandum had been sent to the police. The copy memorandum on the system was blank – CMS is a temperamental beast – but something at least had been sent to the police, hopefully enjoining them to obtain the evidence.
I thanked Megan sincerely, and for completeness bashed out a short, direct email for Megan to forward directly to the police officer in charge of the case (OIC). We need, I curtly advised, by Monday: (i) a witness statement from Amy Jackson, setting out the details of the assault; and (ii) her medical records detailing her injuries, with a statement from a doctor explaining what the records show. I’d be grateful if the OIC rang me on the below number to discuss.
Email sent, there was little to do but wait for the OIC’s call and see what Monday would bring. The call never came, so I arrived early at court on Monday and, having robed, headed to the CPS room at court. The CPS room is a dark, windowless box in which a row of paper-strewn desks host a trail of power sockets for caseworkers to plug their laptops into. A photocopier/printer sits at one end, a Blu-tacked A4 sheet cautioning against using tray 2 permanently affixed to the front. Next to it stands a fax machine, which a few years ago deputized as a printer for a week, when the photocopier jammed and the contractor couldn’t send an engineer for seven days. For an entire working week, any documents that needed printing – including jury bundles for trials, which can stretch to dozens of pages – had to be printed at the central CPS HQ and faxed, page by page, to the CPS room at court. They were lucky. Another CPS room I once visited was deprived for a fortnight of working lights, and the damned inhabitants were forced to rely on tiny desk lamps brought from home to illuminate their underground cavern.
As I entered, a frazzled caseworker handed me an MG6 – a memo from the police. I exhaled with relief. Prematurely, it emerged. The memo read: ‘PC Roberts attended AP [‘aggrieved person’ – shorthand for complainant] address. She is still willing to give evidence and is happy for hospital to release medical records.’
I read it twice. And then looked at the caseworker. ‘And the complainant’s witness statement? And the actual hospital records?’
He shrugged. ‘Don’t know, I’m afraid, I was just asked to hand you that. It’s not my court; it’s Aaron’s but he’s part-heard in the trial in Court 5 and is down in the witness suite dealing with that.’
A further interrogation of the system confirmed that this futile document was the only new material received from the police. The caseworker kindly took time out of his own morass of work to ring the central police hub to try to track down the OIC so that I could get some answers, but, fifteen minutes later, was informed that he, and the aforementioned PC Roberts, were working nights this week and were unavailable.
‘In which case,’ I mused, choosing my words delicately, ‘I think we’re fucked. I’ll apply to adjourn this application to allow us yet another chance, but the judge is going to say that three tries is more than enough.’ The case was going to be kicked before Amy got within a mile of the courtroom; the evidence that she was seemingly eager to give would go unheard.
The judge, as expected, did indeed say that three tries were more than enough for the prosecution to get evidence that should have been available three months ago. He did shout at me for my inability to provide any explanation as to why I still had nothing from Amy or the hospital. He did ridicule the pathetic memo I was forced to read to the court – So the officer visited the complainant, asked if she would give a statement, and when the complainant said yes, the officer just left? Is that what you’re telling me? He did indeed say that the CPS did not deserve an adjournment. And he did indeed say that the defence was entitled, as they naturally did, to urge the court to deal with the application today and dismiss the prosecution case.
But, perhaps because, like I, he had read the MG5 and been hit with that visceral, abdominal instinct you develop over time that the description of what had taken place was, in the criminal hack vernacular, a true bill. And maybe because he had seen Rob’s previous convictions, page after page of violence – usually against women – and had heard from me, probably naughtily, of the history of police call-outs to Amy’s address where officers had found her crying, bruised and insistent that she had walked into a door; and because he knew that, whatever the failings of the state, this was a vulnerable woman in desperate need of protection, who, having finally turned to the state for help, shouldn’t be required to suffer God-knows-what fate as payment for our institutional incompetence. Or perhaps for some other reason altogether, he acceded to my speculative, hopeless application to adjourn.
‘You have seven days,’ he intoned. ‘If you appear this time next week without evidence, I will dismiss the case. Last chance. There is a willing complainant here. The police know where she is. This is not rocket science. Seven days.’
When I got back to chambers later that afternoon, I composed a further, entirely repetitive, advice to the CPS, setting out the history of the case, and the overriding importance of securing this bloody evidence. With Megan away, and the generic CPS email address printed on the brief containing the usual imperceptible error that means that all emails immediately bounce back as undeliverable, my best hope was to address the email to the duty caseworker and the duty lawyer. The duty lawyer’s phone number rang out with no voicemail facility, and so I took on trust the ‘read’ receipt that dropped into my email account as assurance that my advice had been received, and was in the system. All I could do now was wait.
At this point I could take you through the minutiae of the next seven days. Of the reminder emails I sent when nothing had arrived by Thursday. Of the panicked calls I put in on the Friday when the evidence still hadn’t appeared in my pigeonhole. Of the unshakeable foreboding when I walked into the CPS room that following Monday. Of what the caseworker told me, of the documents I wasn’t handed, of the disgust on the face of the judge when I told him.
But you know where this is going. And you could probably replicate the judge’s comments as he dismissed the charges, and capture the vitriol in his ruling as he surmised how, had the evidence been obtained, it might have provided a compelling case. How the prosecution had provided no good reason for failing, time and time again, to get the basics in place.
There was nothing. No evidence arrived. No explanation. And with the giant medical-and-complainant-shaped hole in the Crown’s case, there was ruled to be no case against Rob McCulloch. He was free to go. An innocent man. And of course, he is. No case has been proven against him, and he is entitled to be treated as if no criminal act had taken place against Amy Jackson. If, however, he had been tried by a jury, who had heard Amy’s evidence and found themselves unconvinced, and returned a verdict of not guilty, that would be one thing. The course of justice would have run. But for the trial to not even take place, due to unexplained state error, is not justice. Or rather, it is the type of justice you get if you stop caring about the quality of justice.
I still to this day do not know what happened in that case. To an extent, I am blindsided. I can only recount what I see from my ivory tower and cast partial judgment based on incomplete information. I don’t know where the fault truly lay. Whether it was with the police or with the CPS. Whether there’s another explanation entirely. I just know that something, somewhere, went very, very wrong. In a way that should never happen, but does. And not just as one-offs, but regularly, in cases just like McCulloch’s, in cases far less serious, and in cases even more so.
The next week, I was defending a lady, Laura, accused of stealing money from an old man in her care. She had emptied his bank account of his life savings – close to £20,000 – and told police in interview the slightly unlikely tale that she had done so at the man’s behest, to pay for his day-to-day pocket money. Unfortunately, in the complainant’s video interview statement, the police had forgotten to elicit the vital evidence that the gentleman had not
given Laura permission. Clearly something had been said to suggest he hadn’t, as otherwise there wouldn’t have been a criminal complaint. But the police had forgotten to actually get him to say it in evidence. Easily fixable though – you just re-interview him and ask him, Did you give her permission to empty your bank account? But no one did. When, after an inexplicable delay of three years, the case appeared in the Crown Court, the prosecution was afforded repeated opportunities to re-interview the complainant. And they did nothing. This time, I was the one making the application to dismiss, watching my poor colleague get a judicial thrashing for the failings of those instructing him as another viable case collapsed.
As I say, it is not news to those who see it every day. This happens. We all know it. And defendants know it, too. Practised criminals know that, even if the evidence against them appears strong, there is always the chance that the prosecution case will spin off the rails en route to trial and smash open an escape tunnel. One of the reasons that many defendants plead guilty only on the day of trial is that they will bide their time, hopeful that a prosecution error or a key witness losing their resolve – a crushingly prevalent problem in allegations of domestic violence – will free them at the last. Only when it is clear that the prosecution’s house is in order will these practised criminals – usually the violent, predatory Robs of our world who try to exploit their malign hold over their victim to thwart her cooperation with the authorities – admit their guilt.
It is easy, seeing this every day, for the police, caseworkers, prosecutors, barristers and judges to become case-hardened; to see the collapse of viable prosecutions as inevitable collateral damage when resources are straitened. The humanity of a vulnerable, shaking, bleeding person howling impotently for rescue can be reduced to an unfavourable icon on a database, another disappointing statistic to be diluted in a sea of thousands. Or for us at the Bar, another cracked trial to add to the list, bill and forget.
But some, like Amy, jolt us back into reality. Her case stays with me because, as far as I knew, this was a woman we should have been able to help. I never met her, but I share in the shame; the unshakeable niggle of guilt at having no satisfactory explanation for what went wrong.
I have my theory, of course. For, while the clichéd woe of the public service professional decrying government cuts is quickly dismissible as self-serving protectionism, there can be no organization in any field that, from a starting position of being underfunded, then loses a third of its workforce and has its budget reduced by a quarter and still performs as it should.
When that organization depends on the investigative prowess of a national police force which, over the same period, has lost nearly 20,000 officers – a fall of 13 per cent – and has sustained budget cuts of 20 per cent, the window for error is opened even wider.20
And I wonder how CPS employees feel whenever the Director of Public Prosecutions, in whichever incarnation, has the evidence, statistical or anecdotal, put to them on the rare occasions the media take an interest, and they shake their head at the impossible naivety of the question, at the inquisitor’s ignorance of the CPS’s strategic objectives and quality standards and performance delivery systems, and how they don’t recognize that description of the CPS or don’t recognize those statistics. This, instead of admitting the struggle – the implausibility – of delivering justice at barely two pence per day per capita,21 and telling Parliament, the media and the public, when asked, that the Crown Prosecution Service and local police forces are on their knees.
Digitization Will Save Us, the shout goes out. And it will make a difference; it already has in many positive ways. Things are better than they were only a few years ago at the time of Rob McCulloch. But it is not a panacea. Evidence and disclosure still need to be reviewed; documents still need to be obtained and uploaded; cases still need to be properly managed. Moving criminal cases online does not change their inherent nature. They are complex organisms that need careful attention if they are not to wither on the vine. This requires people. And money.
Notwithstanding the optimism of the CPS’s senior management, HM Crown Prosecution Service Inspectorate, the CPS watchdog, concluded in its most recent five-year review that:
The continuing reduction in resources has led to prosecutors handling increasing caseloads. This is undoubtedly making it more difficult to maintain effective oversight of cases as they progress to trial.22
CPS employees put it more bluntly:
There will be miscarriages of justice down the road from here because there are some cases that are going through the system and people have not looked at disclosure properly and have not looked at what is going on behind the scenes. Things we simply would not have had ten years ago.23
Meanwhile, reviewing the CPS’s specialist Rape and Serious Sexual Offences (RASSO) units in 2016, the Inspectorate warned darkly: ‘The model has shown that the CPS is under-resourced for the current volume of work and even more so for anticipated future increases.’24
This is the iceberg ahead. For, while it is true that the overall number of cases processed by the criminal courts is falling, those coming before the Crown Court increasingly involve allegations of sexual offending, often historic, which are the most complex and time-consuming to prepare. It is estimated that more than half of cases before the Crown Courts now involve sexual allegations,25 and the Criminal Bar Association warned in 2017 of a further ‘tsunami of highly sensitive sex cases’.26 The work involved is substantial: the complainants are often particularly vulnerable and require significant support; the law governing alleged sexual offences that occurred pre-2003 is inexplicably complicated and ridden with pitfalls for unwary prosecutors; the disclosure process can involve procuring and reviewing decades’ worth of faded, handwritten Social Services and medical records; the trials, because of their nature, can take weeks, if not months; and the stakes, for victims, for the wrongly accused and for the public, could not be higher.
I don’t know what happened to Amy. I was never instructed to prosecute Rob McCulloch again. I hope this is because, recognizing his incredible good fortune, he regarded Amy Jackson as a bullet dodged and kept his head down. I hope he didn’t track her down, as perpetrators of domestic violence are wont to do, to seek reconciliation. Or revenge. I hope that the women’s refuge helped resettle her somewhere far, far away, where she might have a hope of escaping a life of Rob McCullochs. And I hope that someone took the time to apologize. Because if Amy had, to use the ugly argot, cultural capital – if she had a good support network and family and friends and an education and wasn’t hooked on heroin and wasn’t fatally vulnerable to the violent charms of vicious, brutal men – she would have demanded answers, instead of settling, as I fear she may have, for the self-told assurance that this is just how the state treats people like her.
The mistreatment of victims in the criminal justice system is not, however, solely down to prosecution error. Amy’s case is an example of how victims can be failed by mistakes at an early stage in the pre-trial process, but we will now look at how, as cases proceed towards trial, the criminal process can often feel as if it’s designed to accommodate the needs of everybody but the person most directly affected by the (alleged) criminal offence. It is this perception that draws us to the siren calls of the politicians pledging to Put Victims First.
And crashes us straight onto the rocks.
5. The Devil’s Greatest Trick: Putting the Victim First
‘Victims must have more help navigating a confusing and often intimidating Criminal Justice System. Too often they tell us they feel they are treated as an afterthought or that the “system” made their already horrific experience worse . . . This total revamp of the Victims Code has been one of my main priorities and I have heard from victims just how important getting this right is . . . It is one of many measures I am introducing to make sure the “system” starts to put victims first.’
Helen Grant, Victims’ Minister,
29 March 20131
&n
bsp; The witness box is a pulpit of human despair. From within this enclosed square metre of panelled oak, witness after witness, and victim after victim, has for centuries told a jury of strangers, seated opposite, their true-life stories of barely imaginable misery and suffering.
It is the witness box that plays centre stage in the theatre of the courtroom as captured in television and cinema. As the alleged victim gives evidence on oath of the wrong perpetrated against them, truths are revealed, lies are exposed, tears spill, hopes rise and fade and credibility crumbles.
The routine for each victim is usually the same. Having given their witness statement to the police, they wait months, if not years, to unburden themselves of the grievance that has plagued their every waking moment. They will be kept informed – or, depending on your viewpoint, at arm’s length – by the Witness Care Unit, who provide piecemeal updates as the case preparation progresses behind closed office doors. The lucky may be treated to a ‘court familiarization day’ and a tour of the courtroom in advance, but for most the first trip to court will be on the day of trial. The victim arrives at court through a side entrance and into the arms of the volunteers staffing the court Witness Service. They enjoy a hot drink while the prosecutor makes introductions and brings a copy of their witness statement to read over, and then it’s show time. The complainant blinkingly enters the bright stage lights of the courtroom and steps tentatively into the witness box to be sworn. Nerves occasionally cause them to stumble over the wording – although notably not as often as do jurors with their oath – and they glance around at their surroundings; purple judge sitting high to their left, jury straight ahead, be-wigged barristers to their right.
If it is my witness, I will start with the same scripted prompt – ‘I know this will feel a bit strange, but even though the questions are coming from me over here, please direct all your answers to the jury over there.’ And I point demonstratively. ‘It’s important that the members of the jury and Her Honour hear everything you say, so please keep your voice nice and loud’ – and then we’re away.
The Secret Barrister Page 13
