The Secret Barrister

by The Secret Barrister

  Not today, though. The witness box is empty. The courtroom, in fact, is empty. Closed, locked, bolted. The complainant, Matthew, is sitting in the witness suite buried in the bowels of the court, politely nodding and crunching his way through his fifteenth digestive of the day as I, the prosecutor, remove my wig and apologetically explain that his six-hour wait at court today has been in vain: no courtroom has become available to hear our trial, and the case is being adjourned off.

  The jurors – and there are plenty of them, also sitting around in waiting rooms with equally unexciting biscuits passing the time until a court becomes free – will have to wait to hear the evidence of his mugging; the brief but terrifying grab from behind in the alleyway next to Matthew’s gym, the freezing coldness of the blade pressed against his face and the draining feeling of helplessness – inexplicably shame – as his hooded assailant rummaged until he found what he came for, and ran away into the autumn mist, iPhone in paw.

  No jury will ever hear it. Matthew will return in eight months for the re-fixed trial date, and will play out the same day in replica: the same biscuits, the same wait, the same denouement. By now it is some two years after the original offence, and Matthew is desperate to give evidence against the defendant who, caught red-handed with the stolen iPhone, is running the laughable, and easily disprovable, defence that Matthew voluntarily gave it to him, a complete stranger. But again, the case will not reach the front of the queue. It will be adjourned for lack of court time encore, and at the third time of asking, Matthew will lose heart, he will disappear, and I will be informing the court on the next occasion that the prosecution is throwing its hand in.

  Matthew’s experience is not unusual. Another week in another court, I’m defending, imagining my opponent in the witness suite. She’s having to explain to a complainant in a knifepoint sexual assault case that the prosecution has failed to secure the attendance of the other witnesses who, unlike the blindsided complainant, were able to positively identify the defendant as her attacker. Without them, there is no case against this defendant, and the prosecution is being aborted at the eleventh hour.

  It is such common recurrences that cause criminal lawyers to greet the repeated political sloganeering to Put Victims First with a scathing snort. Not because victims are unimportant or undeserving of consideration; to the contrary, they occupy a uniquely important and invidious position in our system. Having suffered the indignity of a criminal violation, their redress is subject to a hostile takeover by the state, which will determine if, and how, they shall receive justice for their suffering, but the victim is still expected to man the barricades and sacrifice their time and emotional resilience to the prosecution cause. If our criminal justice system doesn’t adequately protect victims of crime – if it fails to provide due process and respect for those reliant on it, and if it loses their and public trust – it is failing its first principles. Without the victim’s goodwill, there is rarely a viable prosecution case. Protecting the victim’s interests is both a matter of practical sense and a moral duty.

  Rather, my scepticism towards the Put Victims First manifesto arises because we see the institutional callousness with which victims are treated in practice. Notwithstanding that we now have a Victims’ Code (formerly Victim’s Charter), Victims’ Minister, Victims’ Commissioner (succeeding the Victims’ Champion), Victims’ Taskforce (recommending the implementation of a Victims’ Law enforcing the Victims’ Code, as promised by all three main political parties at the 2015 General Election), Victims’ Information Service, Victims’ Contact Scheme, Witness Charter, Victim Support, Ministry of Justice’s Commitment to Victims, CPS Victims’ Right to Review Scheme, National Police Chiefs Council Victim Right to Review Scheme, a Victims’ Services Commissioning Framework, Victim Liaison Units, Victim Personal Statements and the Victim Surcharge, one bald statistic stands out above all: only 55 per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again.2

  It bears repeated emphasis. Nearly half of all witnesses surveyed said that they would not be willing to take part in criminal proceedings on a future occasion. If they witnessed your daughter being mugged, they would not assist in bringing her assailant to justice. If you were falsely accused of assault, they would not come forward to say that they saw you acting in self-defence. If they were themselves a victim, they would not entrust the justice of that crime to the state, preferring, one infers, that the miscreant go unpunished, or be subject to a more immediate, possibly divine, form of retribution.

  This is raw failure on the most fundamental plane. And it’s no secret. Politicians, at least, are well versed in the unhappy lot of the witness, their inboxes no doubt overflowing with irate correspondence from constituents appalled at their brush with the criminal courts. But the solution, universal across the political spectrum, remains the same zygotic slogan: Put Victims First.

  That is not to say that victims’ rights initiatives are not worthy; they are absolutely vital. Much of the misery I encounter when meeting witnesses at court is born of a lack of meaningful information provided by the prosecution agencies, or an absence of support with practicalities – such as arranging childcare during the court hearing – and pledges to improve such basic services should be realized.

  But many of the reasons lying behind that devastating statistic – 55 per cent – are those not solved by a well-intended charter. Rather, the roots of victims’ suffering – of their perceived re-victimization at the hands of the system – are multifaceted and deeply embedded, often visible only to those plunged into the process. Too frequently the simplest reason is the under-resourcing and under-staffing of the court system, but this lurks in the ministerial and media blind spot. For me, these deeper problems are rarely honestly addressed; forsaken instead for another rousing rendition of Put Victims First.

  Just as often, other truths are too hard, too politically ugly, for all except despised defence lawyers to voice: that in many aspects of the criminal process, the inevitable clash, and necessary compromise, between victim and defendant rights, and the guiding principle of not convicting the innocent, mean that the victim can’t – and shouldn’t – be put first.

  I think we desperately need an analysis of brutal honesty. Victims, for all the talk, are not put first. Their rights are presently, in my view, subjugated threefold: to the interests of the court; the interests of the prosecution; and the interests of the defendant. Let’s have a look at what this means for victims in practice.

  Victims v the Court

  For many witnesses I meet, like Matthew our mugging victim, criminal proceedings must feel like a near-permanent suspension of time. They wait months for the police to investigate. They wait for a charging decision. They wait for the trial to be listed. They wait for the trial date to come around. They wait all day at court only for the trial to be adjourned. And they are then sent home to wait again until the next date. And repeat. Entering the criminal justice system as a victim will test your patience, often to destruction and beyond repair, as you stumble into a vortex of ‘poor performance, delays [and] inefficiencies’.3

  Identifying a major cause is not difficult. Between 2010 and 2016, spending on the criminal justice system as a whole fell by 26 per cent, with a further 15 per cent cut to take effect by 2020.4 The courts, Her Majesty’s Courts and Tribunal Service, have borne a 35 per cent cut in real terms, and more is to come.5 By 2020, there will have been a further 40 per cent cut in the court staffing budget.6

  Although as of 2016 slightly fewer cases were entering the system, the new cases were more complex and resourceintensive, due largely to the sudden increase in allegations of historical sexual offences, the legacy of Jimmy Savile et al. At the same time, in order to comply with the Treasury’s diktats, the Ministry of Justice cut the number of days that courts could sit.7 You can walk into any major city Crown Court complex and gaze in wonderment at how many gleaming, fresh-out-the-box courtrooms, festooned with hi
-tech electronics and lovingly carved to ergonomic perfection, lie locked and unused. And it’s not for want of cases to fill them; the inevitable effect of 35 per cent budget cuts and a concurrent increase in the complexity and length of criminal trials has been a soaring backlog of serious criminal cases.

  The National Audit Office reported in 2016 that the backlog in Crown Court had soared to 52,000 cases, an increase of 34 per cent in two years, with roughly 100,000 cases passing through the Crown Courts each year. It has since dipped back down to just under 40,000.8 The average waiting time between first appearance in the magistrates’ court and trial at the Crown Court is 123 days, an increase of 23 per cent since 2010, and this does not factor in the delay between reporting a crime and the first appearance, which can be months, if not years.9

  To tackle the backlog in the Crown Court, court listing officers have taken to shovelling more and more trials into courtrooms in the hope that some might ‘crack’ (resolve, in normal language), prioritizing listing ‘targets’ above all else. In essence, it is replicating the model of the magistrates’ court. And it means that a victim turns up at court for what they have been told is the trial date, only to be informed by the prosecution barrister or the friendly volunteers at the Witness Service that their trial is fourth in a list of ‘floating’ trials, and holds as much prospect of realization as an email from a beneficent Nigerian prince.

  The ‘floating trial’, for the uninitiated, is the official term for a trial listed in a Crown Court centre but not allocated to a specific courtroom. Instead, as the name suggests, it floats ethereally around the building in the hope that one of the other trials listed in court ‘cracks’, and a trial slot opens up. When no slot appears, the trial is adjourned, either to a date far, far away, or, at certain sadistic court centres, to return the following day as a ‘priority floating trial’.

  The rationale behind floating trials and ‘warned lists’ – where a working week, rather than a day, is identified and the parties are expected to be available to begin any day that week – is theoretically sound: it is wasteful to have a courtroom sitting empty, and a judge, jury, clerk, usher and security staff twiddling their thumbs at a cost of £1,900 a day, if a listed trial does not go ahead. The need for back-up trials ready-to-go is obvious. But the number of trials listed as floaters in a single building, where it is clear that most of them have no hope of finding a home, is a victory for listing statistics over basic human decency. I have seen seven floating trials listed in a single day, meaning that seven lots of witnesses and victims will be dutifully rearranging their lives around that sacred date only for most to be sent away empty-handed at the eleventh hour. This is treating human beings, many of whom have been victims of the most foul, dignity-stripping crimes, as chattels of the court, to be distributed and warehoused as the court sees fit.

  When I prosecute, it is notable how little warning victims and witnesses are given of the realities of the day ahead. They are usually oblivious to the fact that their trial is floating and what this means, and unprepared for the likelihood of waiting all day for the slinkiest chance that they might get the ordeal of giving evidence over with. If I have a floating trial, I will explain the position to the (often astonished and angry) witnesses at the start of the day, and thereafter return to the witness suite as often as I can with any updates, but usually I’m in the dark as much as they are. The best I might get is a whisper in the robing room that the trial in Court 3 might be cracking, or that the listing officer is considering admitting defeat at lunchtime and arranging for all floaters to be adjourned off, but transmitting speculation and false hope is, I judge, worse than an informational void.

  If the witnesses are particularly unlucky, they may be bounced out of the building altogether and nonchalantly advised that the trial will now be heard at another court centre. Sometimes in another city. Again, no regard will be given to the practicalities involved, or the inconvenience caused. The witnesses, like the advocates, are just expected to lump it. To make their way there somehow. The police might help out with transporting witnesses if there’s an officer at court. I’ve even been asked when prosecuting if I could drive a complainant to a freshly allocated court (not having a car with me exculpated me from this awkward conversation). Otherwise, in the absence of their own wheels, the witness is pointed towards the local train station and expected to fork out for a ticket (reclaimable at a later date) for the privilege of travelling to another court.

  One such case I prosecuted involved a nasty robbery of a grocery store where the young female shopkeeper, Hana, had been threatened with a rusty screwdriver by a balaclava’d heroin addict. Having closed her shop for the day to attend court, at significant (and non-refundable) personal expense, she waited at court from 9.30 a.m. to 3 p.m. to be told that her trial had floated to another court centre fourteen miles away. She spent £30 of her own money on a taxi to the station, a return train ticket and a taxi to court on the other side, and arrived breathless at our new home shortly before 4 p.m. Meanwhile, in court, the judge took one look at the file, assessed that the trial was likely to run longer than the court could accommodate, and promptly adjourned the case off to the next available slot in eight months.

  If you were a criminal mastermind trying to design a system to deter victims of crime from engaging with the authorities, you would struggle to devise something better.

  Although ‘lack of court time’, as we politely call this failure to properly resource the system, is the primary cause of ineffective trials, it is by no means the only. If your trial does find a courtroom, there is still a Wacky Warehouse full of obstacles primed to stop the trial going ahead. Two thirds of Crown Court trials do not progress as planned. In some areas of the country, the proportion of ineffective trials is as high as four in five.10 Sometimes this is for ‘good’ reasons – namely that a defendant, told by his barrister that the prosecution witnesses have all turned up, agrees that the game is up and pleads guilty. But mainly it is for other reasons: the case being adjourned, or thrown out, because the prosecution barrister instructed the night before has realized that key evidence hasn’t been gathered, or because witnesses haven’t shown up; defendants on bail failing to surrender, or defence witnesses not attending; the trial being adjourned because crucial undermining material has not been disclosed by the prosecution to the defence; defendants in custody not being brought to court by private contractors – a problem that plagues every court in the land every single day of the year; technology not working, such as a DVD of CCTV being in the ‘wrong’ format for the court system; or a broken video-link preventing a witness appearing virtually in the courtroom.

  Or, a particular favourite of lawyers and judges, the interpreter for a non-English speaking defendant or witness may not be present. Up until 2012, courts would book interpreters directly, using an approved register of qualified translators. Then the Ministry of Justice put out to tender all justice-related interpretation services, and the contract was awarded to a small company, Applied Language Solutions, who, before the contract had kicked in, were purchased by Capita Translation and Interpreting. Immediately 66 per cent of qualified interpreters refused to work under the contract due to the derisory pay rates and conditions. Those who were prepared to work were, to put it mildly, a mixed bag. Some had no training in court procedure, and so could not translate basic terms of law (in one case, an interpreter did not know the difference between murder and manslaughter). Some were entirely unqualified in the language they claimed to interpret.11 A serious rape trial in 2016 had to be stopped after a week when it emerged that the interpreter was mistranslating the evidence.12 A 2015 trial at the Old Bailey into alleged war crimes had to be stopped for want of a qualified interpreter.13 An independent quality review in 2014 found that less than half of Capita’s interpreters were properly qualified.14 But the most common problem is that interpreters simply don’t turn up. Over the life of the ALS/Capita contract, 2,500 trials were adjourned due to lack of interpreters.15
Capita was made subject to numerous orders for wasted costs by livid judges, and thousands of complaints per year. Surprisingly enough, Capita declined to bid for the new contracts starting in late 2016, but problems persist.

  Now, some of the variables above, attributable to the disordered lives of troubled defendants and witnesses, are difficult to control. But many of them patently are not. They are within the power of mankind to minimize. Some progress is (slowly) being made through Sir Brian Leveson’s 2016 efficiency reforms, which place heavy emphasis on the importance of proper case management, by judges and parties, to reduce last-minute hiccups or changes of plea. The belated introduction of modern information technology into the criminal courts in 2016 is likewise making it easier to identify problems with cases earlier. But to bang again on this rusty, perforated drum, the primary cause that is identified by every person in the system, every parliamentary report and every purse-lipped auditor remains lack of proper funding. Each bereft component of the system – the courts, the prosecution and the defence – has its own inefficiencies compounded by those of the others, a clanging vicious circle which cannot be tidily managed away for free. At best, those inefficiencies can be disguised from public view by shuttling high volumes of cases through the system as swiftly as possible, as we see currently in the magistrates’ courts, and as, I fear, we are moving towards in the Crown Courts, where even more serious offences, and the scope for even graver injustice, lurk. Given the choice between doing it quick ’n’ cheap and doing it right, the laws of political attraction will always favour the former.

  And so, notwithstanding the curdling screams of the victims that it pretends are put first, the executive ploughs on with further cuts to the courts, blithely insisting that the forthcoming Digital Age will be the cure-all, each transient minister safe in the knowledge that his or her accountability for those pledges will never be tested.