Oil in the CJS
by Steve Wedd
The Rt Hon. Lord Chancellor
The Rt Hon. Michael Gove, MP
House of Commons
25 June 2015
Press reports from this week lead me to read the text of your speech to Legatum.
Permit me to address the first half of your speech, which focussed on the Criminal Justice System. I am a criminal lawyer in Brighton, admitted in 1984.
It is not our Criminal Justice System: it is yours.
Since 1971 (the Courts Act) and 1980 (the Magistrates Courts Act) the CJS has been fashioned and run by Government – since 2010, by your Government. You really cannot blame participants in your system for its failings.
The machinery of criminal justice is yours, the input and output of it yours, and the responsibility for keeping it oiled yours too. It is creaking and it is useless and you and the Rt Hon Chris Grayling MP have allowed it to come to this deplorable state.
Underutilisation of the Court Estate
I understand that you recently visited Westminster Magistrate’s Court and had a dismal experience. I would welcome you to the real world, but Westminster MC is hardly that. The residency there of the Chief Metropolitan Magistrate and the nature of its work make it not representative of the real world of the Justices Court.
Brighton Magistrate’s Court has eight remaining Magistrates court rooms. It is commonplace for only three rooms to sit a court. An airline or hotel that ran at less than 50% capacity would close.
Practitioners are told by the Court office that the cause is lack of prosecutors: the CPS blames lack of Clerks. No one acknowledges that the traffic passing through the building has reduced and what’s left for trial or sentence is delayed. No one seems concerned that the building is empty most of the day, and that only half of it is working.
Failed implementation of IT means that prosecutors often have no file or half a file, and since it is on laptop only, they cannot give it to the defence to read in.
A practitioner this week was in Brighton, the prisoner in HMP Lewes, and the prosecutor in Hastings. The e-file of prosecution papers could not be sent or read. He could not apply for Legal aid since the prisoner was not there to sign a form. Nothing achieved.
Solicitors did not implement this IT failure.
This is commonplace, given
- The private contractors insane routings (Chichester to Brighton via Croydon is not unusual).
- Their routine breaches of contract in not getting prisoners to court establishments on time.
- Insufficient staff on hand to produce to more than two courts, or to produce multi-handed cases.
- Prisoners not leaving cells.
Solicitors did not privatise the escort service.
Defence lawyers welcome (with some cost and efficiency reservations) the use of videolink hearings. Many remand prisoners also relish not leaving their establishment for a short hearing.
However, using the top heavy and expensive system currently endured (in the name of ‘security’) is counterproductive and it takes only one sulk (human or electronic) for it not to work.
Exemplar of one case
I handled the case of ‘SC’ at Lewes Crown Court last week (case number T 2013 640). I had a defence witness missing on leave in Canada. I applied to have that person’s evidence taken by Skype videolink. HHJ Tanzer who sits at Croydon Crown Court leads for the judiciary on IT implementation, has used Skype on several trials with success, and commended it to me.
I was told at Lewes Crown Court the presiding Judge has issued guidance that since Skype is not secure, it shall not be used. It wasn’t. I sent an email to the company commended to me by the court list office, and have not had a reply from it.
Solicitors did not re-invent the wheel using Martin Dawes ludicrously expensive bridge system. Solicitors went out and bought a laptop with free Skype or Facetime.
Why does the Government feel the need to re-invent the Microsoft/Apple wheel with secure email? I know of no one in my professional circuit that has ever had an email intercepted, and I bet you do not either.
Even if it is necessary, cheap encryption is available. That should thwart the red top tabloids.
It’s not necessary because the present system is this – don suit, attend court 1, ask usher for papers in the case of notorious celeb. Use smartphone to photograph all, email to NoTW as was. Replace.
No one has ever asked me what my business is in court 1, across the country. Secure email delays release of confidential information by ten minutes.
In trials, Counsel and I swap email addresses on day one and use it thenceforward. The cost of secure email is stupendous and it fixes a non-existent problem.
What about Defendants?
Your speech notably omits reference to suspects or defendants in the CJS. I found that surprising, since they prop up the whole edifice and justify the existence of every participant. You refer eight times to victims and witnesses and children, without referring once to suspects or defendants. They might be not guilty.
Rule of law
The rule of law to which you referred can only exist if there are those present to uphold and preserve it. Dismantling defence services eliminates those.
Your reference to grotesque inefficiencies and indefensible inequalities certainly resonated around robing rooms in England and Wales. Courts take a high handed approach to supplicants whether in person or represented. No service is forthcoming: only condescension, arrogance, and disinterest.
Late delivery of papers is commonplace and it is caused by your funding regime, ever tightening. When funding is reduced and reduced, inevitably lawyers have to take on more work to make the same money.
This means that some lawyers take on 120% of the work that they could ever possibly do in a given space of time. They do so to make a living, and in the hope and expectation that ‘something will happen’ to 20% of their caseload for that day, leaving them free to deal with the one thing left. It almost always does happen.
The ‘something’ is any of the following – missing papers, defendants, witnesses, interpreters, gaolers, court space, tribunal, jury person, discontinuance, plea, tea bar closed. There is in existing in Sussex a mauve sheet that records the reasons why a case collapsed on a certain day. It takes an A4 page to cover all the possible reasons.
If you paid the lawyers properly, then they would be satisfied with enough; enough would get them through the month; enough would see them take on enough work and do it properly.
The converse is the risk that by only taking on one days work for day one, if that case collapses, the diary is blank for the week. No work, no pay. Your lawyers have to know that they can earn enough to pay their bills and eat.
The culture of solicitors and barristers taking on yet more when they have enough on their plate already leads them to be like brickies or plasterers – always on the phone taking on next week’s work while plastering this wall this week.
Proper funding allows for good preparation, including briefing the correct advocate in advance early enough so that s/he can read into the file fully and set aside the right amount of time to present the case. We are so poorly paid now that we are always chasing next week’s case at the price of doing this weeks as well as we could.
Reducing court appearances
Your helpful suggestions for minimising the requirement for full-dress court appearances was jolly. I asked at Lewes Crown Court whether videolink conferences/hearings would be possible – they are. However, only by me travelling to Brighton Magistrates Court to use the videolink booth there to link to the court room – and then, fully robed for the telly hearing! No Skype allowed.
The missing papers you so clearly describe are missing because there are no police officers or civilians left to process the papers onwards to the CPS, and even if there were, the quantity of lawyer staff in the CPS is matched only by the level of morale there. You forget to mention, yet again, the defendant.
The individuals propping up and justifying the whole edifice are those who cause all the problems by denying their crime in the first place and then changing their pleas. Given that by definition, they have broken societal norms by offending or being accused of offending, they may be unlikely thereafter to comply with those same societal norms that encourage them to be a good chap, with a pat on the head for pleading guilty early.
I agree about the gross disparity of income between the top end of the legal services market and the bottom feeders. The legal market is the same as the universe – both ends speeding away from each other at warp factor ten. City lawyers recognise us criminal lawyers only by title, and I know nothing about how they work.
For many reasons lawyers have been encouraged to focus on selected areas of law. Training, availability of jobs, contract requirements from the Government, regulation, insurance, risk of negligence claims all means that I do not do tax, or divorce or oil law. I’m too thick to do anything but crime. I was tickled by the thought of Clifford Chance popping into Westminster Magistrates Court for a spot of feelgood lawyering for the masses.
The CJS is your machine, designed, operated and maintained by you as Lord Chancellor. You need to keep it oiled.