Criminal injustice

On Friday 7 March 2014, solicitors and barristers united in opposition to further legal aid cuts which, on any view, are savage. Hundreds gathered outside Parliament and thousands more boycotted courts, to draw attention to what they believe is a ruthless and systematic undermining of the criminal justice system.  Funding for defence lawyers is, however, less than half the story. The Crown Prosecution Service (CPS) is failing miserably to deliver the minimum standards that are needed, now more than ever, if any confidence in the system is to survive.

The CPS is the principal public prosecution service for England and Wales, and how it undertakes its role is governed by two key documents: the Code for Crown Prosecutors and Core Quality Standards.

The Code recognizes that the decision whether to prosecute is a serious step and must be undertaken with the utmost care.  It is the duty of prosecutors “to make sure that the right person is prosecuted for the right offence”; casework decisions “taken fairly, impartially and with integrity help to secure justice for victims, witnesses, defendants and the public.” It acknowledges that the suspect or those acting on his or her behalf may submit evidence or information to the prosecutor, prior to charge, to help inform the prosecutor’s decision, and makes it clear that prosecutors must keep cases under review and that no prosecution should be started or continued where it would be oppressive or unfair and an abuse of the court’s process.

The Core Quality Standards were published by the CPS in March 2010 following a public consultation. They lay down the quality of service that the public are entitled to expect from those who prosecute on their behalf.  The standards include: making timely, effective and fair charging decisions in accordance with the Code for Crown Prosecutors, and preparing cases promptly and in accordance with the Criminal Procedure Rules so that guilty pleas can be entered at the earliest opportunity, and fair trials can take place on the appointed dates.

The importance of meeting the standards cannot be overestimated, indeed the document states:

“We expect the public to hold us to account if we fail to provide the service described in them, and we will judge our success as prosecutors by our ability consistently to deliver these quality standards.”

On 20 January 2014, Magistrates at Horsham Magistrates Court stayed proceedings against my clients, Daniel Howick and Jonathan Light, holding that the prosecution amounted to an abuse of process. On 3 March 2014, District Judge Crabtree ordered the CPS to pay the costs of a preliminary hearing that had been an entire waste of time, and that remaining Defence costs should be met out of Central Funds.

The facts don’t matter greatly. Suffice it to say that my clients, both young men in full-time employment who had never been in trouble with the police before, were charged with interference with a badger sett. Aside from a possible prison sentence, conviction would have cost both men their jobs and, in one case he would have lost his home as well. The issue on which the case turned was whether the alleged sett was, in fact, in current use at the time, for which expert evidence was needed.

In staying the proceedings, the Magistrates held that an initial delay by the police in investigating the allegation had prejudiced the Defence to such an extent that a fair trial would not be possible. They noted also the significant failings of the CPS, the disregard shown to the clear directions of a District Judge, and that, even at the date of the trial, prosecution evidence was still outstanding and directions had not been complied with.

Throughout the case, the CPS consistently failed to comply with their legal and procedural obligations with regard to the service of evidence and the disclosure of unused material. They failed to comply with Court directions made at the first appearance and subsequent hearings, despite being warned as to wasted costs.  They ignored just about every communication from the Defence, by letter, fax and email, and only forwarded the Defence expert report to their own expert days before the trial was due to commence.

In awarding costs, District Judge Crabtree said that the case had been badly handled by the CPS from an early stage, which had the consequence of court time being wasted and a real risk of a miscarriage of justice, both of which caused him to have real concern.

On the face of it, justice was eventually done: the right decision was arrived at and my clients left court with their good character and their reputations intact. Despite the outcome, I am left feeling very uneasy about the case and what it revealed of the approach that is being routinely taken by the CPS. On 27 December 2013, I wrote to the Court, in accordance with my duties under the Criminal Procedure Rules, pointing out that the CPS had yet again failed to comply with directions. On 3 January 2014, the Court, having sought an explanation from the CPS, forwarded me the following email from CPS Case Progression Manager, Steven Boyd:

“The simple explanation is that our lawyers are currently struggling to review the 170+ trials listed across Sussex between 3/1/14 & 10/1/14. We have already had to seek assistance from our lawyer colleagues in Kent in attempting to address these difficulties, to the detriment of their own cases.

Whilst we appreciate the assistance of HMCTS in vacating some trials (and I would imagine that more cases stand to be vacated), there are still many trials listed, as indicated above. Unfortunately, with so many trials remaining listed, we have little chance of making any real progress against the tide of such a vast workload.”

Sussex CPS clearly failed to provide the required service in my clients’ case. The CPS is failing across the board to adhere to the high standards justice demands and which the public are, quite rightly, entitled to expect. With the relentless cuts to criminal legal aid, leaving many defendants without any legal representation at all, and an over-stretched CPS which is unable to cope and failing to deliver, it is not just us lawyers that need to be worried.

Tim Ryan specialises in criminal defence.

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