Rearranging deckchairs on HMS Prosecution

When a well-respected prosecutor suffers a nervous breakdown to the point that he attempts

to murder his spouse, it is alarming on many levels. It is well reported that stress levels within the legal profession are at an all-time high, as we read regular reports of breakdowns, and worse.

While LawCare and other organisations can provide counselling and support, it is not enough. This is symptomatic of a deeper underlying chaos within the system.

Figures published recently demonstrate that there has been a decline in crime workloads

by approximately 5 per cent.

We know that more courts are being closed down due to a fall in volume. We know that the defence are no longer entitled to what we used to call advanced information at the first hearing, and that the initial disclosure of the prosecution case falls well short of that which was previously disclosed for the

first appearance. We know that transcripts of interviews are now apparently the responsibility of the defence to prepare. We know that the reason for all of this is to remove the administrative and financial burden.

Defence practitioners are

also noting an increase in

cases where they are surprised

to be told prosecutions won’t

be brought against their clients, despite the existence of sufficient evidence, and other cases where the public interest in prosecuting people of erstwhile good character

for minor offences is often dubious, or at best due to pressure from external forces.

This might sound like a conspiracy theory, but I

have come across too many inconsistent decisions not to consider this as a possibility.

It may be that budgets tip the public interest against prosecuting.

Daily, the magistrates’

courts hear defence lawyers complain that it would be unfair to proceed to trial because the prosecution have failed in their duty to disclose. Daily, the Crown Prosecution Service tell the courts that they don’t see what the issue is or why the defendant is prejudiced by their failure. This

is all part of the push to ensure they proceed on target and

that the CPS is not penalised for failing to follow Civil Procedure Rules directions. Defence lawyers are made to feel as though they are trying to derail the justice system simply by asking that a case does not proceed until service of what they are entitled to, so as not to prejudice the client. Benches are often so complicit in this process that it is left to the hapless defence lawyer to explain to their clients that they are not part of any such conspiracy.

Some benches are a little more robust in the face of the drive to ignore defendant’s rights. Often it is accepted that the Crown’s breaching of the rules means that a case can’t be heard until it complies, and if the prosecution seeks more time then it shouldn’t be granted. When this happens

it is left to the Crown lawyer to explain to the complainant and witnesses what has caused the delay or dismissal. Taking collective responsibility for the failings of others or of the system isn’t a great driver of job satisfaction.

The solution lies in the past, where defendants would receive the evidence against them at the first appearance no matter the charge or ‘anticipated’ plea.

The solution would be to allow robust magistrates to filter cases and to estop those where the Crown has not complied with the timetable of service. The solution would be to ensure

that the Crown prepares its case before it leaves the jurisdiction of the magistrates’ court.

It would also ensure that all the underemployed magistrates had a role in ensuring that timetables are adhered to.

Structurally, at the CPS, the solution would be in recruitment and reorganisation. While the data tells us of the reduction of work passing through the courts and their closures, the endgame has to be a functioning system, which requires greater funding. The management consultants reviewing the CPS’s structure have taken a different view: replace experience with inexperience.

Last week I was party to a shocking conversation in the CPS room of an unnamed court. The assigned prosecutor had not turned up to deal with the list. The explanation that I was privy to was that as a new recruit, and given their inexperience as a criminal lawyer, let alone as an advocate, they were unwilling to prosecute that particular court’s list. The sitting was delayed while a replacement was found.

In another courtroom in

the same building, there was concern about another newbie’s ability to cope with a case, to the extent that arrangements were made for a colleague to adjourn his case to take over.

With cuts in legal aid, why are the CPS not drawing from the large, experienced pool of defence lawyers rather than recruiting those whose training is in family, employment, and company law – many of whom could not find posts beyond training contracts? They may

one day make excellent prosecutors but we haven’t got time to rearrange the deckchairs once again.

Jonathan Black is immediate past president of the LCCSA and a partner at BSB Solicitors @bsbsolicitors | www.bsbsolicitors.co.uk