Thursday, 6 December 2012

Stop delaying justice is going too far

At the start of 2012, the Magistrates Association began a campaign called "Stop Delaying Justice", I wrote about it at the time.

Yesterday I was in court acting as duty solicitor when I was faced with a young man who had allegedly committed an offence and was being prosecuted by the Probation Service - the offence was failing to comply with a Supervision Notice, which is a three month licence package given to offenders under 22-years of age who are released from custody.  It is punishable with a prison sentence and, in this case, the Probation Service made it clear that they were asking for the maximum prison sentence to be imposed.

I won't go into the exact nature of the alleged breach of the Notice beyond saying that much of it was highly questionable and when I did question it a large chunk of the allegations was withdrawn almost immediately.

The probation prosecutor wanted to rush straight into a trial there and then.  I politely asked how she intended to prove her case given that she had no witness statements for me to even consider agreeing and none of the "evidence" she did have was in an admissible format.  She told me that courts didn't need to trouble themselves with such tedious things as the rules of evidence where probation prosecutions are concerned.

In court, the clerk confirmed my view that this was a criminal prosecution, rather than mere breach proceedings, and that the normal rules of evidence applied.

As I said, the Probation Service had produced no evidence whatsoever.  Both the clerk and the magistrates took the view that I should simply draft some section 10 admissions to agree the Probation Service's allegations so that we could have an immediate trial and the court could consider whether or not the defendant had a reasonable excuse.

I said no.  I am of the opinion that if the state wants to send somebody to prison they should at least go to the effort of producing some evidence against the defendant and... you know kinda proving their case.  I don't think it's too much to ask that the prosecutor provides evidence of guilt when trying to send somebody to prison.

The magistrates and clerk then began a bizarre haranguing of me saying, wrongly, that the Criminal Procedure Rules required them to deal with things swiftly above all else and that I should stop trying to delay justice as that is against the principles of the Stop Delaying Justice initiative.  In fact the overriding objective of the CrPR is that cases should be dealt with justly, which include acquitting the innocent and convicting the guilty.

I confess to being shocked at the tone emanating both from the court's alleged learned legal advisor and from the bench itself.  I agreed to end my obstruction of swift justice immediately... well I said I'd end my obstruction as soon as somebody showed me a part of the Criminal Procedure Rules that negates the need of the prosecution to prove their case beyond reasonable doubt or that overrules the normal rules of evidence.  Unsurprisingly, the clerk and bench had to admit that there is no such provision.

Much to my annoyance, the legal advisor (who if you don't know, I should explain is the proper name for the clerk of the court) then stated that it was clearly not possible to have a trial as Mr Diable (moi) wouldn't allow us to proceed now.

I jumped up to my feet and pointed out that I was perfectly happy for a trial to go ahead, which is what probation and the court both seem desperate to do.  Probation could adduce all of their admissible evidence (of which they had none) and I would invite the court to return a not guilty verdict.  Justice need not be delayed.

However, it seems that we only stop delaying justice when that makes a case impossible for the defendant not for the prosecution.

It's also worth saying (as the court clerk did in an effort to make me go away) that as duty solicitor I am not supposed to represent defendants at a trial.  Had I withdrawn as I strictly should have done when the case became a trial, I have no doubt that the young defendant would have been persuaded to allow the trial to go ahead without any evidence from the prosecution and would probably have been convicted and be in prison now.

The whole case from the lack of disclosure to the court trying to press ahead without requiring the prosecutor to produce a shred of evidence put me in mind of The Trial by Kafka.  This should not be happening in courts in 21st century Britain, but it does and as more defendants represent themselves due to legal aid cuts you'll see nonsense like this happening more frequently.