Sunday, 30 November 2008

Prosecuting isn't easy

On Friday I watched a little television. It's not something I do very often, but there was a programme on called "The Barristers", the title caught my eye when skimming through the weekly television supplement while seeing to my morning motion. I had heard of it before through Charon QC, an old friend. I thought I should give the programme a try.

Apparently this was the third of four in the series, the first two of which concentrated on the difficulties encountered by aspiring barristers. On Friday there was still some coverage of beginners but most of the programme concentrated on the work of a couple of established barristers engaged in different ways in the criminal law. As my regular reader will know, I am a barrister. My early years were spent mainly in the criminal courts during the day while I built up a practice in civil law through paperwork done in the evenings and at weekends. I have extremely happy memories of those days, long past though they now are.

Up until twenty or so years ago it was normal for almost everyone who wanted to pursue a career at the Bar to cut their teeth in the criminal courts. This might make it sound as though people facing life-changing criminal charges were left to the mercies of the inexperienced but the reality was far from that. There are many short hearings in both Magistrates Courts and Crown Courts at which decisions are taken about the future conduct of a case. The Defendant is not at peril during those hearings and a well-prepared junior practitioner can look after the interests of the prosecution or defence perfectly well. It is good experience in court which builds-up the feel you need for how court proceedings operate, it also often allows juniors to see experienced practitioners in action and learn from their good and bad habits. The use of junior barristers is carefully regulated by their clerks who know it does no one any good to send them out to deal with cases beyond their skill and experience. They might deal with a procedural hearing but they would not be entrusted with the trial until they had proved themselves up to it.

I should give a brief explanation of how the profession works. Barristers are self-employed but join together in sets of chambers. A set of chambers will usually have very senior people, often including one or more QCs, and a progression of people of varying experience. Their practices are administered by a senior clerk and a number of junior clerks. Newly qualified barristers have to serve an apprenticeship (known as pupillage) for a minimum of one year in which they are attached to practitioners of at least five years experience. In order to enter practice themselves, they must find a seat in a set of chambers. It is difficult to find pupillage, finding a seat in a good set of chambers is even harder. Many good people don't find a seat and a few who do get in fail to develop a practice. Overall it is probably fair to say that barristers who have been in practice for five years or more are very competent.

Friday's episode of "The Barristers" taught me something I didn't know. In my day every trial in the Crown Court (the court which deals with the more serious criminal cases) involved a barrister presenting the case for the prosecution and a barrister representing each defendant. On occasions senior solicitors with extensive experience in court would appear for the defence but almost always it was a barrister. On Friday I learned that Crown Court prosecutions are now sometimes dealt with by lawyers employed by the Crown Prosecution Service. Indeed they featured a case in which a lady barrister who is employed by the CPS presented a murder case in court. It seems that this was the first time a CPS employee had conducted a murder trial.

The Crown Prosecution Service was set up in 1986. Until then the police were in charge of prosecuting cases and had a legal department which undertook that function. The change was made because it was thought more appropriate to draw a line between the investigation of crime (the role of the police) and the prosecution of those accused (previously the role of the police's prosecuting lawyers). The change was long overdue because there is a fundamental difference between the responsibilities of an investigator and those of a prosecutor. The job of the police is to investigate crime and charge those they consider responsible. Once a charge has been laid the game changes, the question then is whether the charge can be proved. That question necessarily involved a critical analysis of what the police have done and it does not sit comfortably to have a branch of the police involved in that exercise.

Since the CPS started there have been moves for it to take over all aspects of prosecuting. It was a little while before lawyers employed by the CPS appeared regularly at house-keeping hearings in the Crown Court, then it became normal practice. The next step was for them to present cases to juries. Now that one of their number has conducted a murder trial there will be no stopping them, within a few years it is inevitable that all Crown Court trials will be prosecuted by a lawyer employed by the CPS. I am in two minds whether that will be a good thing.

Every lawyer is expected to act ethically. Of course it does not always happen, but the more independent the lawyer is the more likely it is to happen. Someone employed by the CPS (working in the CPS office, surrounded by the juniors who have worked on the case, influenced by their personal relationships with those they work with every day, knowing their pension depends on their continued employment) might find it difficult to say "I know you have worked on this for months, but there simply isn't a case here". Of course most able people would be able to do so because they know their professional duties require it, but how does that actually work in the office? What happens when they discover that someone they like took offence at their decision? The next case might see a decision being taken to placate the upset colleague even though the right thing to do is to say they were wrong again. Personal pressures of that kind simply do not arise when the decision is in the hands of a self-employed practitioner.

There is also the inevitable question of quality. Someone has to decide who is to present the case for the prosecution in court. If the CPS have to farm-out the work to a self-employed barrister, or a solicitor in private practice, they have thousands to choose from. They can pick the best available. Of course real life doesn't allow them the choice of absolutely everyone because there will be many they have never heard of and know nothing about, nonetheless they will have many very able people available. There are numerous occasions on which very senior practitioners want a small case to fill in a few days and the CPS is able to brief someone at the top of the tree. If everything is kept in-house the field of available advocates is limited and it is inevitable that some cases will be given to people who simply aren't up to the job.

Another aspect of quality is in the recruitment of people to the CPS. And this is where the real problem arises. A criminal barrister in independent practice cannot expect to make a lot of money. Those at the very top do extremely well, but they are people of huge ability and industry who would make a shed load of cash whatever they did. The vast majority of established criminal barrister of ten to twenty years' experience will make the equivalent of a salary of £40,000-£60,000. It's not bad money but it is not a fortune. To get to that position they will have had to prove themselves to be among the best of their generation in order to be taken on in a set of chambers and will then have had to develop a practice over a significant period of time. When the CPS engage their services they can be confident they have engaged someone of real ability.

Who do the CPS recruit? At the moment they appear to be able to recruit some experienced barristers and solicitors, but not many. Mainly they recruit barristers who could not find pupillage or a seat in chambers and solicitors who could not find employment with an established firm of solicitors. That does not mean that the people they employ are without ability, undoubtedly many of them have all the skills it takes to succeed in independent practice, the problem is the others. There will and must be a lot of others. It matters little if qualified lawyers of modest ability are taken on to process paperwork, what matters a lot is that they will progress through the internal promotion ladder and be thrust into court to deal with cases beyond their ability. Once the presentation of prosecution cases in court is the exclusive province of the CPS there is a significant risk that the overall standard of presentation will fall.

More guilty people will walk free.


woman on a raft said...

"Up until twenty or so years ago it was normal for almost everyone who wanted to pursue a career at the Bar to cut their teeth in the criminal courts."

This may be an important explanation if it is the one underlying some worrying observations. I have met law lecturers who mutter that too many of the senior judiciary and those coming through lack a sound criminal background, but then they are always kvetching so I didn’t take too much notice. Still, things keep catching my eye.

During last year’s canoe-couple trial, the judge took off at the end with remarks about the children being the real victims of the crime. Excuse me? That is alright for Oprah, but a judge in an English court ought to know the difference between a victim of crime and somebody who was bitterly upset by it. The victim was clearly the insurance company. Perhaps it is the practice of impact statements which is producing an emotional vibration right through the legal system and blurring the difference between victims and those whose lives may be shattered but are not necessarily entitled to further legal redress, no matter how much moral weight is behind it. On the other hand, it isn’t my child who has been run over, and I expect one feels very differently when it is. This, however, was a fraud case, and should have had no reference to the hurt feelings of the children. It simply was not the judge’s business.

The point I wish to make here is that it appears that experienced judges in criminal law can be pushed off their solid bases by emotional and PR concerns. If that can happen with the ones who know what they are doing, how much easier will it be to manipulate those who do not have that grounding?

The area I’m most likely to read for political reasons is family law, more particularly public family law. I hold that a great deal of politics is going on at that level precisely because the law sees the word ‘children’ and acts as if all the normal safeguards for the citizen against the might of the state didn’t matter. Some judges seem to be trying to make all child law equivalent to private law. It is not; when the state is a party in a case it is acting on behalf of all of us exactly as it does in criminal law. If one is grounded in criminal law, this equivalence is obvious, but what if you are not?

In a convoluted family case last month, an experienced judge refused to make findings of fact without some more facts to find on, and in particular if a person had or had not committed abuse. It was a tangential consideration in whether or not children should be returned to a family. (The alleged abuser would not necessarily have had access to the children as they no longer lived there). The local authority reasonably argued that this delayed making decisions on the care of younger children and went back to court for a ruling. The appeal hearing ruled that the person could be held on civil standards to have been likely to have committed abuse and thought that this wasn’t a terrible imposition. However, the person involved was barely 18 and would then have a non-criminal record such that it would preclude much employment. Should they ever become a parent could look forward to social services involvement, and yet they had never been brought before a criminal court, always protested their innocence, and argued that there were credible reasons to discount the accusations of the alleged victim. Short of imprisonment there isn’t a harder penalty, and short of trying to prove a defamation case (which might be impossible) they had no recourse. A judge grounded in criminal law knows that how the state acts towards the accused matters profoundly for the whole political culture, but does a judge based in civil law see anything other than the immediate resolution of the dispute at hand?

This brings us up to the extraordinary events of the last week. In it, ACPO have been handing round statements that they have a duty in respect of ‘wrong doing’. No they don’t. There are many things which are wrong but they are civil matters. The line may be difficult to determine at times, but it is there. It was bizarre, for example, that the police took it in to their heads to complain to OFCOM about a documentary once they had satisfied themselves that no criminal act had arisen. Once it was not criminal law, it was the end of their business. Mutterings about public standards are not their remit; they are coppers, not the Taliban.

All that happened this week was that an employee of Her Majesty’s Parliamentary Democracy came by information from another employee of HMPD. That may be very inconvenient, it may be a contract issue between the admin staff member and their employer, but the two disputants are both equally employed as MPs, although one of them has extra pay and rations for having been asked to do officer-class work. It might be for contract lawyers or employment tribunals, but it is not automatically criminal just because it annoys a politician (yet).

MPs are indeed not above the law; the same goes for the police. Neither of them can go in to Judge Dredd mode and rush round defining things as criminal law on a whim – they at least have to pass a law first. Since it is inconceivable that the police would have done this without taking legal advice, and presumably qualified legal advice such as from the DPP, one wonders if any of them are grounded in criminal law at all, despite the job title.

If the DPP doesn’t see the difference between civil and criminal law, and the police find it inconvenient, and judges aren’t being trained in it beyond a few modules at degree level, then we can write all the HRAs you like and it will do no good because they won’t understand the profound implications of the state being a party in a case and a dispute, however nasty, between citizens.

Apologies for going on.

TheFatBigot said...

Thank you Mrs Raft, you raise some interesting points. I will write something about them in a few days once I have finished on the Queen's Speech.