Sunday, 16 March 2014

How to prosecute a rapist

Since the Ministry of Justice announced swingeing and devastating cuts to the criminal Legal Aid budget I have met with ministers, judges and leaders of the profession and a constant refrain of mine has been: ‘And what about the prosecutors?’

This may seem a more remote concern when many criminal defence lawyers are about to lose their livelihoods.  In the case of solicitors this may be due to firms simply shutting up shop or withdrawing from criminal work.  In the case of the criminal Bar this may be due to the collapse of further barristers’ chambers in the aftermath of the closure of Tooks or from barristers individually making the painful decision that they simply cannot make a living from practising criminal law.

Ministers are on the record as saying that there are too many barristers although they have declined to identify how many should go, or who should go or what an appropriate number of criminal barristers is.  Whether there are ‘too many’ barristers is not the subject of this post.  Where the prosecutors of the future will come from and how they will be trained very much is.

England & Wales is an unusual jurisdiction in that the majority of criminal trials are prosecuted by self-employed agents and not by lawyers employed by the state.  Under the Directorship of Lord Macdonald the Crown Prosecution Service sought some years ago to increase the amount of prosecution work conducted in-house by employed advocates, whether barristers or solicitors.  The recruitment drive that followed resulted in less prosecution work being briefed out to the independent, self-employed referral Bar nonetheless a great percentage of trials did and continue to be prosecuted by external counsel.

However the expansion of in-house advocacy at the CPS has undergone a hiatus with cuts to its budget and, perhaps, the realisation that use of the self-employed Bar is actually highly desirable for two reasons: flexibility and cost.  An employed advocate is an expensive cost if he or she is not conducting advocacy and a problem with the criminal justice system is that the length of trials and the intentions of defendants regarding their pleas are hugely unpredictable.  If an employed advocate is tied up with prosecuting a trial of an undeterminable length then he or she can’t be used to conduct plea hearings or other shorter and more predictable hearings.  Consequently the Bar often continues to prosecute trials and CPS advocates, in the main, prosecute other hearings with some trial work included.

If the CPS wants to use a barrister from the self-employed Bar it simply instructs a barrister for the duration of a particular case.  If the barrister conducts the case poorly then he or she can expect to receive no further instructions in the future.  The CPS can use the barrister as and when it wants.  If the CPS employs an advocate it has to use that advocate all the time as long as the advocate’s contract subsists.  Secondly if the CPS employs advocates then it must train them too.  The traditional mechanism by which advocates are trained in England, pupillage, is very labour intensive for the person providing the training as the trainee barrister spends all day every day with them learning the trade.  The barrister providing the training does not get paid for this.  When the CPS employs a barrister from the independent, self-employed referral Bar it gets for free the benefit of the training provided to that barrister at the start of his career.  If the Bar stops recruiting pupil barristers because it can no longer afford to or because there is no prospect of the embryonic barrister building a practice then the specialist and intensive training conferred by pupillage in chambers simply will not happen.

If the contraction of the criminal bar is unplanned, unfocussed and disordered then there is a very real danger that the next generation of prosecutors of serious offences will not benefit from the training of their predecessors.  When corporations or the Civil Service plan redundancies account is taken of their business needs and appropriate candidates for redundancy are carefully identified.  With a self-employed profession like the criminal Bar if barristers simply walk away from the criminal justice system there is no mechanism to ensure that the best remain to pass on their skills to the next generation. 

A member of the public would be forgiven for thinking that almost nothing other than sexual offences come to trial in England.  This misconception is engendered by the media’s obsession with reporting sex cases, particularly involving celebrities.  Understandably and reasonably the prosecution of sexual offences provokes strong feelings.  These are often cases of the utmost seriousness where profound psychological damage has been inflicted on victims, many of whom are often the most vulnerable in society such as children.

However the reporting of these cases is often inaccurate with a focus on salacious details rather than a fair account of proceedings.  Sometimes, although mercifully rarely, things go wrong and a huge amount of negative coverage ensues.  Witnesses are very occasionally subjected to needlessly aggressive questioning in court.  However there is almost never media reporting of skilful or sensitive handling of witnesses where justice is achieved against the odds in difficult or traumatic circumstances.  It goes without saying that a child witness or victim of a sexual offence requires tremendous care and their wellbeing must at all times be balanced with the need to maintain the integrity of the trial process.  This places a huge burden on prosecutors and defence advocates alike.

If advocates in sexual offence cases do not possess significant intellectual and emotional intelligence the examination of witnesses can be a painful process.  If advocates are inadequately trained and prepared their questioning is likely to be clumsy and ill-considered at best and downright harmful at worst.

Every barrister that ever practised has faced the enquiry: ‘How do you defend someone when you know they’re guilty?’ I have never heard nor do I imagine has the question ever been asked: ‘How do you prosecute someone when you know they’re guilty?’ It would ostensibly be a very foolish enquiry.  After all the mere fact of the prosecution should indicate that the prosecutor takes the view that the defendant is guilty otherwise why prosecute him.  Any decent prosecutor is keenly concerned in the outcome of a criminal trial, rarely more so than in a sex case.  Prosecutors are trained to present an implacable and professional fa├žade at all times but do not be misled into thinking acquittals are greeted with indifference.  These cases exact a heavy emotional toll and need to be conducted by advocates of the utmost professionalism.

This post is not intended as an advocacy training manual.  It would be presumptuous of me to offer advice when the Bar is full of advocates hugely more experienced and skilled than I am.  But I do venture this answer to the title ‘How to prosecute a rapist’ and it is with extreme care and professionalism.  As a hardworking taxpayer you are entitled to expect nothing less than this; it is within your power to demand that the prosecutors of the future are properly trained and drawn from the ranks of the most intellectually and emotionally able.  The independence of mind and judgement that is the soul of the self-employed Bar is integral to this and without proper funding that independence will be snuffed out.

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