Bringing the law into it

But it would be nice if we could get the law right

If you see me in court and somebody brings up a point of law you may well hear me jokingly ask the judge “not to bring the law into it”.  I don’t mean it (unless the law happens to be against me, in which case I’d much rather it were left out), but there are an increasing number of people who genuinely seem to believe that the actual law has no place in a court of law.  They will happily quote their version of the law but the actual law… well we’ll leave that at the door.

I recently conducted a trial at the start of which the prosecutor forcefully informed me that my defence had no basis in law.  I obviously told him that was jolly fascinating and that he should tell somebody who cared.  Next up popped the court legal adviser who told me the same – in suspiciously similar terms to the prosecutor.  I pointed out that my defence was valid at which he scoffed.  I recommended he go and read a particular case.

In court, both the prosecutor and legal adviser lectured the court that one part of my defence had no basis in law.  I corrected them both with reference to the law!  After much brow furrowing the legal adviser managed to locate the relevant passage in Wilkinson’s.  He grudgingly conceded that I might be correct but then went onto give his own spin on the law that effectively amounted to “well if the police officer doesn’t think this was relevant then the court cannot go behind that.”  Now, this is clearly a nonsense – decisions by police officers binding courts might be popular with Theresa May but it is rather a bad show for the concept of justice.  He also tried to distinguish the case law from our case on the facts, despite him not knowing the facts of the case law.

The thing that particularly annoyed me was the legal adviser’s decision to give a detailed description of how the Court of Appeal intended its decision to affect future cases WITHOUT READING THE CASE!  All he had to go on were five lines in Wilkinson’s that give nothing more than a passing description of the facts and decision, while the actual report is about 12 pages long.

This is by no means an isolated incident.  Earlier in the year, I caught out two advocates attempting to use cases against me that they had glanced at in Archbold but had neither read nor understood.  Although to be fair, in one instance the learned editors of Archbold had got the case law wrong as well so it wasn’t entirely the advocates fault.  One of the advocates was very junior so has no excuse for having forgotten his legal research skills.  The other was very senior prosecuting me in a child abuse case in the Crown Court and so had no excuse for not having learned the lesson of not relying on cases you haven’t bothered to read!  Incidentally, in both instances I had anticipated the relevance of these cases in my preparation and so took the trouble to read them in advance.

I imagine that this is a new thing, although, like complaining about the atrocious behaviour of the modern youth, it may be as old a complaint as time itself.

I can’t help but wondering whether the lack of investment into the Criminal Justice System is behind what seems to me like a downward trend in the effort put into researching the law for cases.  Staff levels in magistrates courts have been heavily cut, as have costs in the CPS and defence firms all of which means there are often less people trying to do the same (or often more) work thus leaving little time for preparation, which includes proper research of the law.  In the magistrates’ court, it is very common to see a prosecutor who has been handed several piles of papers with no opportunity to read any of them immediately before the trial begins.  It also means that legal advisers frequently rely on elderly copies of legal books and have no access to the online research tools that are available, which can cost several thousand pounds per year to access.