I have been practicing law for 30 years. I chose to practice law to help people. With this aim in mind I practiced as a legal aid lawyer, originally working in Moss Side, Manchester
Whilst things were not perfect, the court system was treated with respect, the rules of evidence and disclosure observed. There was a grown up feeling that the process mattered and time was allowed for the Court to think about what was before them.
This report from the Criminal Law Solicitors Association reveals the desperate state of the Criminal Justice System
Paul Darnborough Solicitors are acutely alive to all the points raised. Should you be unfortunate enough to have to appear at Court. It is vital, now more than ever, that you get in touch with us.
This is grim reading. However, using our experience, intelligence and tenacity we can still plot a route through this challenging landscape.
Interim CLSA disclosure survey results. If her Majesty’s courts and the Crown Prosecution Service do not obey laws and lawful regulations – Why should the rest of us?
The motivation for this survey was the growing anecdotal evidence that the basic right on our citizens to know the case brought against them was being subverted. We wanted to find out how widespread that was. We are shocked and appalled by the results showing how Justice is being undermined systemically by the very institutions charged with the protection of Justice.
The survey is still open and its eventual results will be sent in a restrained formal manner in due course. This will piece will not fall into that category of communication because the direction of travel of these responses are clear and frankly shocking. We have so many written contributions that I cannot do more than select a few to accompany the graphs. We will provide a link below to all the comments and updated Graphs as the responses still are being received daily. Please read them after reading this.
We are grateful for the understandably anonymous comments from Judges and prosecutors as well as defence advocates.
What the results so far reveal is a landscape that is an utter disgrace that should be an embarrassment to those presiding over this thoroughly shabby state of affairs in our criminal Justice system. It shows an increasingly prevalent undermining of the law and Criminal Procedure rules.
Between Courts and Crown there has now been created a dangerously uneven ‘playing field’ causing real harm to the public and ultimately unless checked, our reputation as a nation for fairness and Justice. The chaos revealed actually causes the nation increased expenditure due to the cost of adjournments, with Courts apparently doing all possible to enable and facilitate prosecution incompetence in the delivery of evidence to the defence and indeed the court itself. This service of evidence is a prime function of the prosecution set out by common Law and lawful regulation within the Criminal Procedure rules.
The Interim Survey Results
We asked a series of questions. Please remember that the results are still coming in but they are irrefutable in direction of travel, supplied as they are mainly by front line experienced trial lawyers.
The first question we asked was this:
Q.1 In your experience as a criminal practitioner have you encountered disclosure of evidence failings or late service by the Prosecution?
Here is the result which is not that surprising as mistakes do happen.
So clearly this graph and statistics are not particularly revelatory as they could include occasional failure.
But look at the next example of responses to Q2 which asks:
Q2 If you have encountered disclosure failure by the Prosecution how would you describe the frequency of such failure?
So we can see from this 90.58% of respondents describe disclosure failure as occurring very often.
Comment There is no disclosure where I practice it’s a fact. At trial no disclosure served is now usual and a DJ stated in Court that Cpr isn’t primary disclosure when i argued that noncompliance was in breach of CPR. Might be an indication as to how some Courts treat non-disclosure by CPS, at best an irritation, at worst complete disregard for the Cpr and in turn justice.’
Recently the lack of disclosure has been alarming. I have just successfully represented a 14-year-old boy in dated with attempted murder and the significantly undermining material about the only witness in the case only disclosed after a section 8 application was made and The reviewing lawyer realised there may be an issue over time limits. Even then the response to the request for educational records was they could not be provided as the school is closed for the summer holidays. The record when produced showed that the witness has a history of lying for attention and sympathy. Imagine if we have not had it.
These figures (90.58%) are disturbing. But not fatal if the courts deal with such failure robustly. Do they? Let us turn to the next question.
Q3. When the defence have brought the disclosure failure to the attention of the Court what has the attitude of the Court to the defence in general been?
Only 13.63% find the court always or usually supportive. The vast majority found the court response either mixed – 50.10% or often very unsupportive -36.28%. That is a staggering total of 86.38% of respondents experiencing reluctance from courts to deal supportively with defence advocates following prosecution disclosure failure.
How that general lack of a supportive attitude impact upon advocates is clear from the many additional comments many left with the survey.
Comment ‘I undertake magistrates & crown court work. Disclosure filings are, in my experience, much worse in the magistrate’s court. Magistrates and district judges rarely support defence in the applications for disclosure, and often moan about defence taking up court time by asking for additional court listings to chase up disclosure. Many magistrates’ courts just send the cps an email to chase disclosure, instead of agreeing to a defence listing to chase disclosure. The cps doesn’t respond to the court emails any more than they do the defence emails, hence the court can say it’s complied with its duty under CPR but in reality it’s a totally wasted exercise.
Comment Failure in disclosure is merely one of a set of failures that I see in Court on a regular basis that contributes towards a prosecution/court biased system. So often the Court fails to take issue with non-disclosure and merely tells the Defence to get on with it. Yet the Court will reduce the number sitting to accommodate the CPS. “Pressure of work” is acceptable to the Court from the Crown – God forbid the Defence should raise such a difficulty. The Prosecution witness needs to be found = adjournment: The Defendant is running late = trial starts. Bad character and hearsay applications by the back door before the same bench. All serve to accomplish one thing, pressurise the Defendant into pleading. Justice is not even seen to be done anymore, let alone done!
Comment The current system appears to favour the prosecution. It would appear that the Courts are sympathetic to the fact that the CPS do not have sufficient resources to meet their duties of compliance however, the defence and defendants are expected to just accept that to the detriment of the defendant. Speedy Summary Justice has simply gone mad!!
Comment There is a culture of the courts giving the CPS the benefit of the doubt by constantly referring to financial pressures, lack of staff. This excuse that carries no weight – when you see the lack of funding and the work pressures on defence solicitors. Defence solicitors are frequently criticised in front of their clients for failing to correct the failures of the Crown, it is so bad I warn clients that whatever happens in court it is always the defence solicitors fault. The failures of the Crown are as a result of the protection they receive from the DJ’s and legal advisors my experience of lay justices is that they try to be fair until a legal advisor starts to criticise. The Courts are instructed to ignore mentions or if you persist put you in front of a DJ who doesn’t want to know
Our next question deal with how the courts actually deal with the disclosure failure. We asked:
Q 4. Do you consider that the Court deals with disclosure failure appropriately?
This was the response –
Something is clearly wrong if only 5.37% of respondents felt the courts normally deal with disclosure failure justly and fairly. Some 51.44% feel some courts do not (all courts should) and 43.19% describe these court failures as frequent. That is appallingly high.
Comment The failures of the CPS to deal with disclosure issues have caused two of my trials involving youths to collapse in the last week. Further, the Court kept refusing the list the matters for case progression which caused even more difficulties. Although when the matters were listed, the Magistrates just gave the Crown more time to the detriment to my clients, one of whom was 13 years old and of previous good character. The other client is 17 and facing an allegation of S18 Wounding, the trial collapsed because of the Crown’s complete lack of disclosure and their lack of case management. The situation is getting worse by the day and the Court assist the situation by failing to take action against the Crown.’
Comment late, incomplete or non-disclosure is now the norm at the Magistrates’ Court. The CPS routinely ignores CPR directions. If we list for non-compliance, the Court invariably give the CPS an extension and we then often have to list 2 or 3 times to get what we are entitled to. Sometimes we have to go so far as submitting a Defence Case Statement to force disclosure. The Court appears powerless to do anything – a Wasted Costs Order is occasionally threatened but rarely followed through. As a Solicitor Advocate, I can say that it is completely the opposite in the Crown Court. On virtually every file, full disclosure is provided early or on time and there are very few issues. This suggests that all the resources are being channelled in one direction even though the lower courts still deal with the vast majority of cases. Something needs to be done to address the balance.’
Comment ‘Late or no disclosure is common practice here in Devon with no sanctions against prosecution whatsoever. This is not justice very imbalanced playing field not assisted by the courts or judiciary.’
Comment ‘The cps are under massive strain and pressure given the cuts imposed and almost without exception there are disclosure problems in every case I prosecute and defend particularly in third party material issues . The courts are entirely unsympathetic to defence disclosure requests frequently citing requests as fishing expeditions.’
Q5. At the first hearing the Prosecution are obliged under CrimPR 8.3 to serve a summary of the circumstances of the offence, any account given by the defendant in interview, and any written witness statement or exhibit that the prosecutor then has available and considers material.
How is that rule being observed? How well are the Crown complying with their duty to serve evidence before or at the first hearing to enable the defence to be the ‘early engagers’ envisaged by Lord Leveson?
Here are the results:
So clearly on a regular basis the prosecution are failing to comply with the rules. Nearly 80% of respondents say so. That is a staggering failure rate. What is the fallout from this failure? Pleas being entered blindly with the risk of miscarriage of justice or disruption later on with vacated trials.
In addition to that is the extraordinary pressure place upon defence lawyers not to adjourn for adequate time for instructions if by chance some disclosure does turn up by rushing the taking of instructions under absurd time pressure, bearing in mind the defence is not at fault. We are punished for CPS failure. ‘How long to you need? – we shall put the case back and give you until X o’clock’. We are given greatly limited time when the Prosecution have had weeks or longer.
Comment The present egregious system is an affront to fairness and inimical to justice. It favours the prosecution and brings tremendous pressure to bear upon the defendant to plead guilty notwithstanding the absence of any relevant, disclosed, evidence. The problems are especially acute at the Magistrates’ Court where the lay justices have little appreciation of the difficulties that defence advocates face when advising a client. Sometimes I will advise the client to elect in order for a more fair hearing thereby causing greater loss of court time through jury trial and additional expense to the ratepayer. I have 30 years’ experience and the present situation is at an all-time low.
How the next advocate commenting managed to restrain themselves from physically leaping across the legal advisor to get at the Bench is a tribute to their professionalism.
Comment Memorably one occasion, when listing prosecution failures concerning disclosure and reminding the bench of what the CPR requires, the chair of the bench commented ‘we must deal with things as they are, not how they should be’.
But some may feel surely this would not happen months later at an actual trial. That would be wrong. The defence chase the CPS proactively for this or that document, media or other evidence but frequently to no avail. Look at the next graph which asked the question:
Q 6. At the trial or final contested hearing have you encountered a disclosure failure to serve documents or media required (e.g. under common law or under the CrimPR’s 24.13)obligation in good time prior to hearing.
Imagine the impact this has on the client and family who ask you how things are with the trial preparation and the response is something like ‘well I haven’t been able to prepare proper cross examination of the complainant (and or other witnesses) because I have yet to be served with’ ( the witness statements or CCTV etc.) The response is ‘well that does not seem fair. – Surely the court will give you an adjournment to prepare properly? (This conversation is taken almost verbatim from a case of mine just a few days ago). I provide the link for this for you to read later dealing with this and other similar incidents:
Comment In many circumstances I find the court do try their best to ensure we receive what we need, however the CPS do not adhere to directions made and no sanctions are given. More often we find we are unable to contact any lawyers by telephone and secure emails are repeatedly ignored, ultimately puts more pressure on us. I recently had a case where no statements had been served, I made usual requests and even listed for mention but this did not stop the crown being allowed to serve the statement of a police officer that had been written and served on the morning of the trial.
Comment Fed up with one rule for the Prosecution and another for the Defence.
I was touched by this story of youthful enthusiasm for the law turning into possible terminal cynicism. This is what the legal establishment is doing to good lawyers with good hearts and intentions.
Comment I wrote in my school report (aged 13) “when I grow up I want to be human rights or defence lawyer to help innocent people.” It’s near impossible to do that when the Prosecution tie my hands behind my back (lack of disclosure) and the Court rather than untie me, go on to blindfold me (lack of judicial scrutiny). 9-10 month wait for a summary trial in Cambridge. No disclosure. No judicial scrutiny. I’m sick to the back teeth of the phrase “Your client knows whether s/he’s guilty or not.” Thank God for jury trials and right of appeal to the crown court.
And this sums up what this is really about. Not irritation at being unable to do your job but a profound assault upon the presumption of innocence.
Comment There is a strong feeling by defence lawyers in our area that the court bend over backwards to accommodate the inefficiencies of the prosecution. District Judges comments such as “well your client knows if he/she has committed the offence” display a shocking trend against the presumption pf innocence and the duty to prove guilt is upon the prosecution.
I refer back to the responses to Q 3 and 4. The court will try frequently to bully defence advocates to cut corners rather than adjourn. Failing which instead of excluding the evidence for unfairness they will simple adjourn to give the Prosecution a ‘sporting chance’ to get it right months later and an adjourned hearing. This judicial indulgence of the CPS of course simply encourages further incompetence later on in other cases.
Comment There seems to be a culture of acceptance of CPS and police failures and sympathetic courts views based on the basis of high workload. Alas, the work passing through the courts has been comprehensively less during the past couple of years rather than more. The take-it-or-leave-it CPS approach is supported by the courts insistence on no adjournments at all costs. Justice and fairness are expressions from the past.
I am also familiar now with the premature and desperate use of defendant case statements even without these being triggered by service of unused schedules. A desperate tactic.
Comment We use Defence Statements and s8 applications to try and force disclosure but the Courts are not always supportive, and even when they do make directions the CPS do not always comply promptly. There needs to be a sanction the Courts can impose against CPS for to comply.
I am also deeply bothered by a growing number of reports of basic discourtesy shown by courts to defence lawyers who are simply asking the courts to apply the law. They are brushed away as if an irritant. There is no excuse for that at all. It is an abuse of power.
Comment Proper disclosure will not happen until the Courts enforce the law or the rules are strengthened to make sure the courts do so. Courts also need to be courteous to defence lawyers bringing the attention of the courts to any prosecution failure to disclose evidence and not facilitate and enable disclosure abuse.
The survey put to lawyers proposals to deal with these issues in terms of a strengthening of the Criminal Procedure rules. Our first question dealt with the issue of failure to comply with the initial disclosure provisions. We asked:
Q7 At the first hearing would you support the strengthening of CrimPR 8.4. by imposition of a presumption of adjournment to another hearing date where late disclosure places the defence under unreasonable logistical or time pressure difficulties in dealing with such that day?
Of those responding 96% would wish there to be a presumption in favour of an adjournment to another day if under logistical or time constraints.
It must be understood that often on the first hearing the defence may have many other of their own cases to deal with and or they be busy as duty solicitor. Often they would have requested an electronic file which could have given them a head start but these are frequently is delayed and paper files (AD or IDPC) are handed over. Plus streamlined files are often inadequate in detail or sometimes actually blank but no one has noticed. So much for the digital age and
Lord Leveson’s proposed ‘early engagement’.
On fixed fees we cannot as defence lawyers afford adjournments (as some have pointed out in comments). But it is very difficult in particular if the client indicates a not guilty plea because the fixation with avoiding adjournment costs means you virtually have to prepare trial strategy on day 1 without papers.
You only have to look at the pained expression on Court legal advisors faces concerned about the impact on their statistics to know asking for an adjournment to seek adequate papers from the Crown is going to go down like a lead balloon. And what are often the consequences of such a false economy? Frequently it is vacated trial dates if late disclosure of evidence or a schedule of unused material arrives and raises issues to make a forth coming trial date impracticable. So how much money has that saved in reality? If they can serve later why can they not serve not immediately following the charge? Presumably they had signed statements to justify a charge.
The other scandal is as we touched on earlier is the ambush by the prosecution by frequent service of often a great deal of evidence on the day of the trial. We put this question in the survey:
Q8. At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of CrimPR 24.13 so such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?
Here are the emphatic results.
An overwhelming view – 96.16% – that at a trial – the Crown should not be able to rely upon evidence served late which might put the defence under unreasonable logistical or time pressure without leave unless in exceptional circumstances . (Unless it is agreed under S10 CLA1967). We anticipate A S78 application to exclude based upon failure to comply with the common law, the procedure rules and under ECHR art.6 .3 providing the hearing must be ‘held within a reasonable time’
The problem of disclosure failure although not confined to the Magistrates Courts does appear to be far more acute than in the Crown Court where Crown court Judges do seem to keep a tighter rein on the disclosure problem and have more of a grip on this.
However this crisis is showing signs of spreading to the Crown court:
Comment I have witnessed the way disclosure is dealt with rapidly decline into the situation we now find ourselves in. The prosecution consistently fail to comply with their disclosure obligation. It has now become the norm to attend trial with no papers and no unused and merely be handed it on the day and told to be ready. The courts legitimise the Crown’s beaches of the disclosure obligation by failing to deal with the beaches robustly. We are now in a position where the Crown’s failure to comply with the disclosure obligation is the norm. This leads to miscarriages of justice and defendants routinely acknowledge that the Magistrates Court is no place to get justice. The failure of the Crown to comply with their disclosure obligation and the court’s reluctance to deal with breaches robustly means that increasingly there is no justice in the Magistrates. This has now crept into the Crown Court where the defence have to constantly fight to get disclosure. It is very rare that the disclosure obligation is complied with. In nearly every single case I have at the moment, approximately 50, the Crown have failed to comply with their disclosure obligation and I’ve had to list the case for a mention hearing.’
But at the Magistrates court where most cases (90%) and contested trials occur the courts simply allow the Prosecution to ride rough shod over the rules introduced to prevent exactly this type of poor practice.
Sadly some District Judges seem to be particularly singled out by some respondents as being particularly hostile to defendant’s lawyers attempting to persuade the court to comply with the law. Some legal advisors to lay benches cannot escape responsibility for their complicity in failing to advise their benches to follow the law.
A number of respondents indicated that where they can they will elect Trial by Jury to escape these problems and to ensure a fair trial. It is a fairly basic right that defendants should know the case against them. A right in law that is being flouted every single day.
Comment ‘Disclosure failings in the Magistrates Court are rife and CPS appears to act with impunity because the court can’t or won’t hold them to account. The impact on the defence and our ability to have a fair trial is massive and yet when we complain we are ignored or waved away. It is the opposite of justice being seen to be done.
And here another good lawyer questioning whether to carry on in a system where institutionalised injustice is rife.
Comment ‘Profit margins are so tight at present that the additional time spent in dealing with late or non-disclosure and a biased Court approach relentlessly supporting an underfunded CPS may push firms over the line of remaining commercially viable. My staff struggle daily in their efforts to force the Crown to serve evidence in a timely manner. The MOJ should concentrate their efforts in ensuring a level playing field and enforce routine compliance with Standard Directions. By continually turning a blind eye to this injustice serves no one, not Witnesses, Police, Prosecutors, Defence and Defendants. A root and branch reform is needed. There are some in the profession, including myself that see injustice on such a regular basis, that serious consideration is being given to exiting the profession. I find it difficult to support a process that is departing so dramatically from my natural sense of justice’
Why do we keep up the pretence that this is not the case? If the legal establishment wish to return to the days of serious miscarriages of justice let them be honest and say so to Parliament. Relevant Ministers can attempt to justify ambushing the defence with no or little disclosure. They can ask Parliament to instruct the Criminal Procedure rules committee to remove these basic rights currently provided. Then we will all know where we are which will be that there is no right to a fair trial in the Magistrates court. Of course this will increase massively the number of Trials both at summary level and at the Crown court but at least it is a more honest position than we have now – a form of Soviet Union style Institutional hypocrisy with a pretence of fairness and Justice set out in the rules which are simply ignored.
It has been directly suggested to me on social media outside the survey that the Criminal Rules procedures Committee are at serious fault.
This was the comment.
‘They are busy producing documents that are, in the main, first class and you would imagine that they took some sort of pride in the task and the results. However, what they achieve is the opposite of what they should have achieved assuming that they set out to produce rules that in some way defined a CJS that was both efficient and fair.
The members of that committee cannot feel pride in what they have achieved as they may have, more than anyone else, contributed to a skewed CJS due to their failure to speak out about the way in which their quite good work has been hi-jacked by a judiciary so we do not support a system that works for everyone. The CrPR committee was under a duty to speak out to explain that their work has been bastardised and that their only recourse is to begin to unwind the CrPRs to let all sides move forward relying on their wits and expertise. The only rule should be there are no rules. By taking the extreme steps they can recover the status that they were meant to have. They have so far failed to earn any status other than the authors of a manual of best practice.’
This may seem rather harsh and without wishing to appear naive I would suggest that it is more likely that the Criminal Rules procedure Committee are simply unaware of the extent to which the rules are being distorted and flouted despite the efforts of practitioner members some of whom have tried to alert the other members to the seriousness of the problem. It would be hard to dismiss such concerns now as exaggerated or insignificant. This survey reveals failure by the Judiciary, Legal advisors and the rules committee itself to maintain Judicial impartiality.
Perhaps all is not lost.
When the CLSA/LCCSA raised the issue of the failure of the prosecution to comply with the IDPC disclosure the Rules Committee did listen and swiftly introduced a new CrimPR namely 8.4 which at least provided that the court must not allow the prosecutor to introduce (new ) information unless the court first allows the defendant sufficient time to consider it. That was a step in the right direction but it failed to deal with trials at all.
My point being though that the committee at least recognised the problem from our anecdotal reports. It moved to action and reform (albeit modestly) when confronted by the evidence.
The survey implies a tightening of the rules is desirable and sought within the terms of Q 7 and 8.
This present survey is a far more detailed critique of the disclosure crisis than previous representations relying as it does on detailed responses from all over the Country.
I do not wish to presume but I cannot see how the Criminal Rules procedure Committee can possibly and with credibility ignore this evidence. The disclosure regime is utterly broken. The reputation of the Criminal Justice system is at stake. We simply cannot continue with Courts enabling the Prosecution to continually break the law and rules. ‘The Law is not a game’. The Courts and Crown must not play fast and loose with it.
Comment. Some prosecutors seem to think it a game rather than people’s lives. Limited disclosure then a not guilty plea entered. Only then will any statements be served despite them being easily available earlier.’
Let us return to basics. In the current statement on the ‘objectives and content of the Criminal Procedure Rules’ – updated Monday, 30 January 2017 one can find the intent behind the rules. It is probably a good time to remind that these rules apply to all parties including the prosecution but also the courts who are also subject to them as ‘participants’. The note can be found here:
Here are a few quotes from this statement to bear in mind.
‘The criminal courts bear a heavy responsibility to the community to do justice in criminal cases. Nowhere is simplicity and predictability more important than in those courts.’
You will decide from the evidence of this survey whether the current disclosure regime delivers ‘simplicity and predictability’.
‘The presumption of innocence and a robust adversarial process are essential features of English legal tradition and of the defendant’s right to a fair trial. The overriding objective acknowledges those rights.’
You will decide from the evidence of this survey if the present disclosure regime is delivering on that ‘acknowledged right’.
‘It is no part of a fair trial that questions of guilt and innocence should be determined by procedural manoeuvres.’
On that very point – I postulate this – Avoidable delay is not only ‘scandalous’ – (DPP v Picton (2006) but institutionalised delay in the knowledge of likely Court complicity is a form of ‘procedural manoeuvre’. The many comments made in response to the survey suggest this is the case. If there are no consequences for failure why would the Prosecution comply?
The statement goes on:
‘It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.’
Why was it felt necessary to provide for disclosure of evidence? For historical reasons where it has been proven there is a risk of miscarriage of justice without it. For members of the public this news item linked here is a useful reminder. Lawyers will not need to be reminded.
The statement concludes:
‘The Committee, too, was not persuaded that it is just for a party to obstruct or delay the preparation of a case for trial in order to secure some perceived procedural advantage or to take unfair advantage of a mistake by someone else. If courts allow that to happen it damages public confidence in criminal justice. The new rules make it clear that courts must not allow it to happen.’
We all know this of course applies to defence Lawyers and as predicted by Andrew Keogh of Crimeline this has largely resulted in the ‘death of the Technical lawyer’ in his ‘Eldon Lecture’ in 2011. https://youtu.be/2bhMweYNF24
I am fine with that. But is it not the case that constant failure to disclose also ‘obstructs or delays’ justice? The evidence revealed here above will suggest that is so.
‘A criminal trial is not a game’ (Lord Justice Auld made this point in his Review). This is very true but it is the prosecution who time and time again are provided by the courts with the ‘sporting chance’ over their failure to disclose. This manifests in the constant adjournments allowed to the Crown and failure to sanction them. Lord Auld’s’ comment has far more relevance to the Crown than the defence now but the legal establishment has failed to adjust to the reality on the ground that is mainly the courts and the CPS who fail to comply with the law and lawful regulation.
On the first hearing, as the survey results show it is now common place for there to be hopelessly inadequate initial disclosure in breach of CrimPR 8.3. That is not a problem for the prosecutor as invariably this failure impacts on the defence who have to scurry off into a corner to take instructions if evidence is eventually served or put in the onerous position of advising blind if it isn’t served.
On the day of the trial, after weeks of chasing vital evidence if it is not served the defence seem to be blamed for daring to ask for an adjournment either for the Crown to belated obtain this or if it is served, no matter how long the Crown have taken to serve this the defence are placed in the invidious position of rushing off into a corner to take rushed instructions with both they and their client under stress of time pressure that rarely is imposed on the Crown. All this in breach of common law, the procedure rules (CrimPR 24.13) and under ECHR art.6 3 providing the hearing must be ‘held within a reasonable time’ if an adjournment is actually permitted.
I have recently commented separately (which please read later perhaps) on the performance of the Crown Prosecution Service here: WHAT IS WRONG WITH CPS LAWYERS? so will not add to the comments of survey contributors in the present piece but I do try to identify solutions as well as the problems.
I have also written before
‘Sadly it seems there are no subterranean depths to which some courts will avoid descending to in their apparent enthusiasm to tilt the scales of justice against the defence. We have become like the old Soviet Union with a superficially attractive criminal code that the judicial establishment ignore.’
If the legal and political establishment do not like the rules providing for fair disclosure they should be honest and argue to change the law not allow it to be subverted it in a cowardly underhand way.
No defence lawyer wishes to impose the stress of an adjourned trial upon their own client. It is often forgotten that largely on inadequate fixed fees it is rarely to their economic benefit for legal aid lawyers to seek an adjournment. That factor does not impact in the same way upon prosecution lawyers who are paid regardless under their salary structures.
The prosecution fail to comply with the law and rules. The Courts often do little to ensure they do and thus are responsible for the ‘epic fail’ as the CLSA survey has overwhelmingly begun to reveal. Look at the key findings above in graph form and written comments left by some (but not all) participants who completed the survey. Due to their number I could not set them all out here in this piece but the link to all comments for all to see is here and I urge you all to read them. Then decide whether or not there is the most serious crisis in the way our criminal Justice system operates. Full comments link:
The key findings that the survey has, we submit, overwhelmingly established is a sorry tale of the Legal Establishment turning a Nelson style blind eye to prosecution disclosure abuse.
Would welcome further research but we respectfully suggest such would be unlikely to produce a different outcome.
We ask again the question. If her Majesty’s courts and the Crown prosecution Service do not obey laws and lawful regulations – Why should the rest of us?
If the Criminal Rules procedure Committee do not act and with some urgency as I believe in these circumstances they are obliged to do – (‘ordinarily, amendments to the Rules will be made in April and in September of each year, with the amendments coming into force ordinarily 3 months after that. That discipline necessarily must give way to any urgent need for new rules to be made at other times’) – then defence practitioners will have to rapidly adopt a legal activist approach to overcome this mighty systemic failure currently bringing the whole criminal Justice system into disrepute.
We will watch with interest. If we have to we will force change. We did not become criminal lawyers to remain silent when taking part in a massive fraud upon the public. The pretence that justice is blind and equally administered is no longer sustainable. We will no longer stand for it. We require immediate reform which can simply be achieved by strengthening regulation that give a clear guidance to courts to enforce disclosure rules. Laws and regulations must be obeyed and no one, not the Judiciary and certainly not the Prosecution are above them.
In the meantime the survey remains open and can be accessed on this link. http://www.clsa.co.uk/index.php?q=clsa-disclosure-survey