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Rearranging deckchairs on HMS Prosecution

Rearranging deckchairs on HMS Prosecution


Why is the Crown Prosecution Service recruiting corporate lawyers who couldn't find a post after qualification rather than drawing from an experienced pool of defence practitioners, asks Jonathan Black

When a well-respected prosecutor suffers a nervous breakdown and 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. It has been suggested that Mr Farrimond was struggling to cope with the new digital case system. I can't comment on how it works from a prosecutor's point of view.

What we do know is that the figures published last week 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 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 prosecution case falls well short of that which was previously disclosed for the first appearance. We know that transcripts of interview 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. Within the public domain was the case of school teacher Kato Harris who was acquitted by a jury but not before the complainant's parents apparently instructed a top law firm to intervene in the CPS decision not to prosecute.

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 CPS nonchalantly tell the courts that they don't see what the issue is and 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 CPR directions.

Defence lawyers are made to feel as though they are desperately 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 persuasively explain to their clients that they are not part of any such conspiracy.

Some benches are a little more robust towards the drive to ignore defendant's rights. Often it is accepted that the Crown breaching of 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 under employed magistrates had a role in ensuring that timetables are adhered to.

Structurally at the CPS, the solution would be in recruitment and reorganisation. One might question the need to do so, given that the data tells us of the reduction of work passing through the courts and their closures, but 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 they had told management 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 for a replacement to be found. In another courtroom in the same building, there was concern about another newbie's ability to cope with a particular case, to the extent that arrangements were made for a colleague to adjourn his case to take over.

With cuts in legal aid, why is 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