The Secret Barrister

by The Secret Barrister

  Which means, for example, that despite Her Majesty’s Crown Prosecution Service Inspectorate making plain that the CPS’s Rape and Serious Sexual Offences units are ‘under-resourced for the current volume of work and even more so for anticipated future increases’,16 and that this feeds into the CPS failing to follow their victim policies in one third of sex cases,17 there will be no money made available to plug the gap. No funding to address the fact that, in two thirds of cases where the victim has alleged serious sexual abuse, the CPS can’t even afford to send a proper Victim Letter of adequate ‘quality, content and tone’.18

  Victim Letters may not sound important, but to a victim they can be vital. One of the hardest conversations I’ve ever had at court was with a man who had received a Victim Letter informing him that the thug who had violently entered his home and stolen his treasured family heirlooms had pleaded guilty. The victim had turned up at court for the sentence hearing hoping that the burglar might reveal the whereabouts of the stolen goods, which included materially worthless but invaluable personal documents, certificates and photographs. I had to inform him that, to the contrary, the man for sentence today was a burglar in an entirely different case. My further enquiries then revealed that the CPS had in fact discontinued this victim’s case for want of evidence without telling him, compounding the misery by sending out the wrong pro forma Victim Letter.

  By itself, this minor bureaucratic error sounds minimal. But for this man, it was everything. He asked me to repeat myself as he struggled with tears in his eyes to compute how such a thing might happen – why would you tell me that my crime is solved? He visibly crumpled as the realization dawned that he was going home empty handed, to explain to his wife that their burglar remained at large, and her irreplaceable professional qualification certificates, hastily gathered as she fled her war-torn homeland, would not be found. Standing there, functionally useless in my ridiculous courtwear, I apologized over and over, my vicarious guilt multiplied by the man’s downright decency. I recommended that he raise a formal complaint, and promised that I would do likewise on his behalf. But it’s not enough. He shouldn’t be an afterthought.

  But victims often are. Not by the people on the ground, and certainly not by the kind souls who volunteer their time to victims’ charities or to offering comfort and support in the Witness Service at courts. But by those running the system. As HMCTS merrily continues its spree of widespread court sell-offs, it inverts the principle of locally rooted criminal justice and renders it harder, more time-consuming and more expensive for victims to get to court. ‘There will still be a court within an hour’s travel for 97 percent of people’,19 the Ministry disingenuously insists, ignorant of or uncaring about the practical needs of those without their own car and in rural areas poorly served by public transport. And so it is that I find myself in witness rooms asking teenage boys who have been attacked in the street by hardened thugs to re-attend their ‘local’ Crown Court, a four-hour round trip on public transport, for an adjourned trial smack bang in the middle of their school exam period. Knowing that such requests are reinforced with the implicit threat of a court order to compel their attendance, it is difficult to convince myself, on such occasions, that I am on the side of good. Whose interests are being served by a justice system that treats its most vulnerable as dots and digits on a spreadsheet?

  Where there is a clash between short-term fiscal policy and the welfare of victims, the former always wins out. Free pro-victim slogans, inexpensive talking shops and circular expressions of intent will triumph over costly extra court sitting days, a better quality of private contractor or a properly resourced prosecution service. I do not pretend that in a reality of finite resources, the solution is easy; but it is at least obvious. Practical improvements of the victim’s treatment in the courts are identifiable. Unlock the empty courtrooms. Pay for more judges or recorders (part-time judges) to sit and deal with the backlog. Resource the police, CPS and the Witness Care Unit so that proper attention can be given to cases and errors can be minimized. Hold private contractors to their obligations, and enforce sanctions for the delay and suffering that is caused when they take four hours to drive a prisoner four miles to court. These should be the basics.

  Victims v the Prosecution

  ‘So let me get this straight,’ the judge growled at me, head in his hands. I exchanged wide eyes with my opponent perched at the opposite end of the desk. He grinned, leant back in his chair and leisurely surveyed the environs of the judge’s chambers. He, and I, knew what was coming.

  Going into a judge’s chambers is a curious experience. It’s like going backstage at the theatre. The actors all take off their wigs, the formality is dialled down – the judge becomes ‘Judge’ rather than ‘Your Honour’ – and matters can be discussed more freely. Some judges only invite counsel into chambers under strictly limited and formal conditions, when the barristers need to tell the judge about a confidential matter that can’t be spoken in open court – such as where a convicted defendant has turned police informant and wants the judge to know this before sentencing. Other judges habitually summon barristers for a gossip, post-match analysis, or, as in this case, where they want to bash heads together.

  ‘The defendant has already pleaded guilty to two serious offences of violence. We’re here today simply for trial on a minor allegation that, around the same time as breaking one man’s jaw and injuring another’s arm – both of which the defendant admits – he also bit someone’s hand in the scuffle, and caused a tiny scratch that I can’t even see on these damn photos.’ The judge looked up to toss the offending images across the desk towards me.

  That was the measure of it. The defendant, Ryan, had a distinguished history of expressing himself with wordless violence when he saw other men talking to his girlfriend. One such man was a twenty-two-year-old called Samuel, who made this error one night in a local bar. Two uppercuts and three kicks later, Samuel was cradling a shattered jaw, and his buddy, and brave intervener, Colin, was lying on the floor with an immobile arm. Sensibly, Ryan had pleaded guilty at an early stage to battery and inflicting grievous bodily harm. What he wouldn’t admit, however, and the reason for our presence at trial that day, was that, as the melee spilled out onto the street and into the gutter, Ryan had deliberately bitten Colin’s hand and caused a tiny, 1cm cut, charged optimistically in a separate count as actual bodily harm.

  The judicial monologue continued.

  ‘Now you tell me that the aforementioned bite-ee has attended court today oblivious to the fact that the defendant has even been charged with biting him.’ I nodded – Yes, judge. He came because he’d been mistakenly told that the defendant was denying breaking the other complainant’s jaw. The judge waved away my interjection. ‘And this witness has said firstly that he’s not sure that the bite was even intentional.’ Another nod from me. ‘And secondly, he has expressly told you that he has no interest in pursuing this trivial, inconsequential, unprovable bite to trial.’ Yup. ‘And your instructions from the Crown Prosecution Service are to nevertheless insist that this man go into the witness box and that we have a three-day trial, at the cost of several thousand pounds to the taxpayer, litigating something which will not make a blind bit of difference to the overall sentence?’ I nodded and twirled my wig in my hands.

  What I could not say out loud, but had tried to hint to the judge through coy smiles, nods and ‘uh-huhs’ during his soliloquy, was that I had given this exact advice, on three occasions including today, to the CPS Divisional Prosecutor.

  Hauling seven civilian witnesses and three police officers to court for a three-day ABH Crown Court trial where the evidence of actual bodily harm is limited, and where the defendant has already pleaded guilty to inflicting grievous bodily harm such that, even if convicted of the bite, it would not make a difference to his sentence, does not appear to be in the public interest.

  I had set out the Sentencing Guidelines to show how little difference the ‘bite’ would make to
Ryan’s sentence even if we won, which of course was by no means guaranteed. I suggested that the CPS speak to Colin, explain the position and seek his views. In response to my lovingly crafted five-page advice – gratis, I don’t get paid for these things – I received a two-line memo from the Divisional Prosecutor saying simply, ‘This must proceed to trial.’ When I tried again, re-formulating my advice and politely asking whether I’d missed anything in my application of the public interest test, I got an equally sphinx-faced reply: ‘I disagree with your advice. Proceed to trial.’

  When Samuel and Colin arrived at court and realized that Ryan had already admitted breaking their respective jaw and arm, they immediately stated that they both wanted nothing more to do with proceedings. Colin’s response when I explained that the trial was over the bite was a thoughtful, ‘Bite? Oh yeah. Y’know, I don’t think he actually meant it.’

  I spoke to my nemesis on the phone and tried for a third time. His response was candid, if nothing else: ‘We’re not dropping this. I’ve read your advices, and if the witnesses are there, you’re pressing on.’ I explained – doing my level best to minimize the passive aggression in my tone – that not only were the witnesses reluctant, but Colin was effectively agreeing the defence case that the bite was not so much wilful mouth-to-hand as accidental hand-in-mouth. I really have to advise, I said, in the strongest terms, that we knock this on the head.

  His barked reply disclosed the root of our stalemate: ‘What about our statistics?’

  I am not privy to the mysterious workings of CPS statistics, but a lawyer once told me that taking a decision not to proceed on the day of trial sets off all sorts of alarm bells, triggers and internal reviews. Therefore, even if a case is doomed, if it has nevertheless limped to the door of trial, the senior decision-makers will insist you push it through and force the jury, or the judge at the end of the prosecution case, to acquit.

  And so we found ourselves in the judge’s chambers at an impasse, no one at court, least of all the victim, thinking that a trial was a sensible idea, but our hands tied by an office-bound civil servant craven to his statistics. The judge’s expletive-filled reaction when I mentioned that the word ‘statistics’ had arisen in my discussions with the CPS was most unjudicial, but entirely apt.

  And this illustrates the irreconcilable tension that can arise between the state prosecutor and the victim whose complaint it litigates. While the desires of the state and complainant often converge – both, for example, will usually want a conviction – the state has its own multiplex of competing interests to manage, some of which will sit at odds with the desires of the complainant.

  Finite resources, for instance, will inevitably dictate that only cases where there is sufficient evidence to realistically support a conviction will be pursued to trial; to do otherwise would result in a disservice to not only the taxpayer but other complainants with more meritorious cases lingering in the blocked court system. It is also of fundamental fairness to the accused that the state does not abuse its might by launching speculative prosecutions based on negligible or inherently unreliable evidence, no matter how sure a complainant professes to be of a defendant’s guilt. Moreover, public policy will require that some prosecutions, where there is evidence to support a charge, nevertheless ought not to be brought – for instance, in certain heartbreaking cases of assisted dying, or cases where a defendant is so infirm that a prosecution would be oppressive.

  Those considerations are properly reflected in the Code for Crown Prosecutors, which we looked at earlier, setting out the test for whether to prosecute: is there a realistic prospect of conviction? And is it in the public interest, considering among other things the interests and wishes of the complainant?

  Interests and wishes, it should be noted, are not synonymous. Domestic violence cases expose the distinction; often the prosecution will proceed notwithstanding the best efforts of the complainant, with her (for it is usually her) manipulative other half pulling her strings from the wings, to retract her truthful allegations. Securing the best interests of these vulnerable, repeat victims of abuse may require compelling them to cooperate with a trial process they profess no desire to enter.

  But on other occasions, such as with Colin, it is difficult to see how the Code for Crown Prosecutors is being satisfied. What about our statistics? reverberates in my head several years on, a quasi-state secret let slip by an immovable bureaucrat in a flash of frustration.

  Because we see, both in the ordinary cases that make up my daily fare and in macrocosm splashed across the newspapers, this third, uncodified consideration slip into prosecutorial decisions: the prosecutor’s interest test. What makes life more straightforward for the CPS in a culture of hypercritical reflexive media reporting and centralized targets? And while cases such as Colin’s are not a new phenomenon, the growing influence of extraneous considerations has in recent years been demonstrated most forcefully by the surge of prosecutions for allegations of historical sexual offences.

  It is easy to understand how we got here. Taking allegations seriously, investigating them fully and prosecuting where the code is met are pillars of the prosecution covenant; too often in the twentieth century, we have belatedly learned, these were disregarded. Complainants – many potentially victims of the most horrific sexual crimes alleged against high-profile public figures – were failed. A correction was plainly required. Part of the recalibration has taken the form of the CPS Victims’ Right to Review Scheme, whereby as of 2013 a complainant has a right to seek a formal review of a prosecution decision to not bring charges or to terminate proceedings. A corresponding scheme exists in respect of police decisions not to refer cases to the CPS. This is clearly a good thing. As the person most affected by the state’s decision not to litigate a complaint, it stands to reason that the complainant has the right to request a review by a second CPS lawyer.

  But while conscious decisions not to prosecute are now rightly made answerable, slipping under the radar are cases which are being prosecuted where they don’t meet the code. Under-resourced and terrified of letting slip another Jimmy Savile, CPS Rape and Serious Sexual Offences (RASSO) units, set up in 2013 to provide a specialist prosecuting service for sexual allegations, have been overcompensating for historic wrongs by pursuing cases where the evidence simply isn’t there. A review in 2016 concluded that RASSO units were misapplying the evidential test even more frequently than general CPS lawyers. Cases where there was no realistic prospect of conviction were being erroneously charged and erroneously reviewed. It was observed, from interviews with judges, police and barristers, that there was a perception of ‘considerable pressure on the CPS to improve on success rates and to prosecute more cases, which may lead to some cases being pursued even though there is little chance of obtaining a conviction after a trial.’20 A case study charted the tale, all too familiar to practitioners, of a weak case being wrongly charged, and subsequent reviewing lawyers feeling unable to take a sensible decision to discontinue the case. In other instances, ‘decisions on cases are rushed to achieve timeliness targets and then subsequently dropped when more thought is given to the detail of the case.’

  I have genuine sympathy. The pressure on the CPS, it must be recognized, is enormous. The media squall surrounding Greville Janner in 2014 is instructive. When the Director of Public Prosecutions decided that it was not in the public interest to prosecute the eighty-seven-year-old demented Labour peer on charges of historical sexual abuse, the media reaction was venomous. And wrongly so. While serious errors had been made in the 1990s and 2000s, when Janner wrongly, in the view of an independent report,21 escaped prosecution, the position in 2014 was markedly different. Stricken with dementia and agreed by four psychiatrists to be ‘unfit to plead’ in law, Janner could not be tried in the ordinary sense. He could certainly not, as a matter of law, be convicted; all that could happen was a ‘trial of the facts’ in which the ultimate outcome could only have been an ‘absolute discharge’ – i.e. nothing. The DPP
thus concluded that it would not be in the public interest to engage in a resource-intensive show trial of a seriously unwell octogenarian, putting complainants through the strain of criminal proceedings.22 In response, campaigners and commentators, few of whom had acquainted themselves with the law or facts, clamoured for the DPP’s resignation for ‘failing the victims’ until the decision was overturned (only to be ultimately thwarted by Janner inconsiderately dying shortly afterwards).

  Now, imagine you’re a CPS lawyer who saw first-hand the abuse that the DPP received for taking a difficult decision, which could not be sensibly characterized as unreasonable, not to prosecute a high-profile sex case. And you have on your desk, awaiting review, an allegation of historical sexual abuse, which doesn’t quite satisfy the evidential test. With all that swirling in the mix, do you stick your head above the parapet and put your name to a decision to terminate proceedings? Do you rigorously apply the code and risk sparking a firestorm? Or do you perhaps loosen the strictures and think that, well, the case is probably going nowhere, but . . . we could stick it in front of the jury and see? Let them make the decision.

  Many CPS lawyers I’ve worked with would do the first. They are brave and principled and cognizant of the compelling reasons why the code exists. But others, as the statistics in the report show, would follow the second course. Keep the complainant happy. Avoid any media fallout. Don’t spook the internal CPS statistics. Plus, you never know – a jury may even convict.

  I understand the human temptation. When I take off my wig and sit down with a witness at court to break the news that their case has collapsed, it is indescribably horrid. Being faced with the weeping flesh-and-blood cost of the system’s failings and having to find the words to say, ‘Sorry, no justice for you,’ is one of the hardest parts of what we do. I at least am usually able to truthfully – weaselly – exculpate myself from personal blame by pointing to a decision of the judge or jury, or an evidential cock-up by a faceless, nameless police officer. I am fortunate enough not to have ever had to look a complainant in the eye and say, ‘I see your pain. I hear your story. And, like the many professionals before me in whom you trusted, I am taking the decision to do nothing about it.’ That daily burden on CPS prosecutors must be at times unbearable.