BBC Four's The Prosecutors failed to deliver
A chance to reveal the real workings of the CJS has been wasted by something resembling The Office, writes John Cooper QC
Eating a pizza (there was nothing else that took my fancy on room service), I sat in a hotel room in Manchester the night before a court hearing. Papers read, pizza half-consumed, I flicked through the television schedules to see if there was anything worth watching. I ended up on BBC Four watching The Prosecutors.
Now, it is always fun watching people you know on the television, indulging in friendly banter about Brian Altman QC's new wig, and the am dram-acted case analysis segments with Crown Prosecution Service (CPS) lawyers was harmless fun - which anyone who ventures in front of a camera puts themselves forward for - but, beyond this, what played out before me caused real concern.
I know what the important purposes of a television programme are: they are to entertain, engage, and hopefully inform. Of course The Prosecutors was not intended as a lecture upon how the system works, but I presume that it was intended to portray the prosecution in a positive light, especially when the credits ran and a voiceover gave details for anyone wanting to work for the CPS.
So, if The Prosecutors was an extended pitch to get people to apply for the job, what did it tell us, accurately or inaccurately, about working for the CPS?
The first disclosure made, as mentioned above, was that case analysis meetings between CPS lawyers and case workers were somewhat basic, where practitioners repeated to each other first year law principles of procedure, and then indulging in a highly emotional discussion about the case before them. Alright; it was a snapshot, and I presume the CPS had no editorial control over content, but at a time when prosecutors' decision-making is under the spotlight, the quality of analysis on The Prosecutors can only increase public concern about the rigour of that process.
Things got worse when one senior prosecutor seemed to fail to understand the burden and standard of proof by complaining that all the defence had to do in a trial in relation to the prosecution case was 'pick and pick'. This, I should remind him, is called the burden and standard of proof, and while there is an increasing trend in the Crown Courts today to ever increase the boundaries for admissions, he needs to be reminded that it is the duty of the defence to 'pick' at the prosecution case, however annoying this may be to him. It can lead to rightful acquittals.
Even more worrying was the same senior prosecutor declaring to a colleague that 'we have to be careful about completely exposing our case'. Now, call me old-fashioned, but isn't that called 'disclosure'?
The Crown, as the prosecuting authority, is obliged to disclose all matters that might assist the defence and - here are the key words - or undermine that of the prosecution. Again, if 'completely exposing our case' is such a chore, the CPS needs to be reminded that is how the system works, through complete exposure of the prosecution's case, which is presented for analysis, primed to be 'picked' at, if you will, by defence advocates.
For my part, The Prosecutors has given me a wealth of material with which to dress defence speeches to a jury and for that, I suppose, I should be grateful.
Furthermore, I completely understand the need, if not the urgency, to explain to the public how user-friendly the CPS is. To that extent, job done. Photogenic and empathetic people explaining how they had difficulty not frowning in court when the nasty defence barrister was speaking no doubt registered highly on the public sympathy register, which, after all, is what this programme was all about, but it would have been a far more compelling piece if it had examined the real issues concerning the prosecution of citizens in this country.
Those issues concern inadequate disclosure of prosecution material, which, if it is disclosed, provided late and in breach of court orders, sometimes in the middle of a trial. Maybe The Prosecutors will next look at a little more rigorously how overriding objectives are addressed within the criminal justice system and how prosecution thresholds are interpreted for bringing a case to court? Now is the time for there to be a revealing and frank exposure of the work of the CPS.
Without doubt, they work in challenging times, chronically underfunded - but the criticisms expressed here go beyond funding. Here was a chance for a seminal programme on the criminal justice system, but it has been wasted by something resembling The Office than a probing fly-on-the-wall analysis.
And did I really hear a police officer say there was 'an audible gasp' in the public gallery?
John Cooper QC is a barrister practising from 25 Bedford Row