Friday, 6 November 2015

Games, Trickery & Getting Off - Sensible & Silly Criticisms

I don’t know if you and your colleagues have ever been accused of being weird, useless and conniving in your professional endeavours.  If you have you will know that it can be at once both a wounding and provoking experience.

On 4th November 2015 the BBC website published an article entitled: Crown courts in England and Wales ‘chaotic and archaic’.  This summarised a report published by the Criminal Justice Alliance.

I will set out the charges below:

The Crown court system is ‘structured mayhem’

Many victims and witnesses felt frustrated that they had ‘little voice within the courtroom’

Wigs and gowns created a sense of ‘other-wordliness’

Language and rules were ‘elaborate, ritualised and – in many respects – archaic’

Delays caused ‘frustration, anxiety and inconvenience’

Jenny, a fraud trial defendant, said ‘There’s just bundles of paper, box files overflowing under desks.  And it makes you think: well if there’s all this unorganised stuff everywhere, how organised are people really? That’s important paperwork – why is it just being thrown around?’

Others said the system was about ‘trickery’, ‘getting off’ and proceedings were a ‘big game’

Julia, a witness, said ‘It’s just very frightening, very daunting when you walk in and you see all the chairs and the benches and everything set out and then you see all these people with their wigs on and the gowns.  It’s just very, very frightening.’

Ron, a witness, said ‘Lawyers should remember: it’s not a game.  They’re playing with people’s emotions and people’s lives.’

Recommendations made include:
- A review of wigs, gowns and other ‘other-worldly’ court formalities by the Lord Chief Justice and court services
- Greater emphasis on lawyers and judges to use ‘plain English’ and explain technical terms to defendants, witnesses and victims
- The appointment of an officer in the court administrative office responsible for monitoring delays and communicating with court users
- Using the criminal dock only when necessary for safety reasons and instead seating defendants with their lawyers as the ‘norm’

This is in many respects a very frustrating report because some of its observations are acute and helpful and chime with the experience of professionals.  Chronic underfunding of the Criminal Justice System is causing delay and does hamper communication with victims and witnesses.  If you have been a victim of or witness to crime you should expect to know when you will  be giving evidence and not told it could be on any day in a two week window at the end of which you are told to make yourself available for another window in 6 to 8 months’ time.  This is an unacceptable way of treating often vulnerable and traumatised people and nothing could be more calculated to squander goodwill and respect for the CJS.  There should already be people in court offices capable of communicating dates and developments to court users.

Abolition of the dock is an interesting and sensible proposal and it is one that wins favour with many lawyers.  The costs of seating defendants in docks has not been calculated but it is likely to be astronomical.  When a defendant is on bail no jailer would be required in court if the defendant sat next to his or her lawyer.  Furthermore communication between lawyers and their clients is hardly facilitated by hurried mutterings through a glass partition.

I believe that it can’t be right that defendants should be required to sit in a glass box as spectators at their own trial.  In the ‘old’ 19th century courts at the Old Bailey the defendant sits on a dais surrounded by fancy carved finials slap bang in the middle of the court.  There is a very interesting article to be written about courtroom architecture and its symbolism.  In those same courts barristers face the jury box emphasising the historic importance of the advocate and eye contact with jurors.  Now the Bar and the judge face each other with the judge, as ever was, omnisciently looking down on all.  The sooner defendants sit with their lawyers the better.

This however is where the sensible and well founded suggestions and recommendations begin to peter out.  Wigs and gowns.  Of course they look extraordinary.  Of course nobody in their right mind would propose them now.  But are they really what alienates court users?  The main reason we still wear them is tradition which is the main reason anything happens the way it does in this country.  Where tradition is harmful, female genital mutilation being an extreme example, it should be ended immediately and without discussion.  Where however tradition is in reality harmless then what is the purpose of doing away with it?

This complaint is really about formality.  It is possible to envisage a trial process where all parties sit round a  circular table wearing tracksuits and in which an entrant into the room could not distinguish judge from barrister, from witness, from juror, from usher, from defendant.  Would that in reality reduce the anxiety of witnesses and defendants or is their anxiety a natural reaction to matters personal to them being ventilated in an open forum with potentially serious life changing consequences?  If it is the latter then altering appearance and the courtroom architecture will reduce their anxiety not at all.

Nobody complains that police officers wear uniforms when investigating criminal offences and wigs and gowns are just that: a uniform.  As a symbol of our profession they are known around the world and unusual though they may look it can hardly be said that they are intrinsically intimidating.

As to the complaint of ‘other-worldliness’ the courtroom is a different place.  But it is a different place in the way that an operating theatre is a different place.  The people within it are still just people doing their job.  Advocates and judges that use long words are bad at their job and bad for the Criminal Justice System.  Good advocates and judges know this.  If witnesses and juries can’t understand what you’re saying then you are not persuading and if you are not persuading you are failing.  I learnt this lesson as a pupil when I asked a teacher witness who made a note about a classroom assault whether it was contemporaneous.  The witness replied: What does contempt your anus mean?  And every barrister knows that eliciting the answer: What’s a demeanour? When asking what someone’s demeanour was like is the best lesson in using words of one syllable.

I will acknowledge that some aspects of court procedure are archaic and needlessly so.  A theologian’s library of holy books on the usher’s desk has always struck me as a very bizarre sight and it is unclear to me why judges can’t simply ask witnesses if they promise to tell the truth with a warning that imprisonment a possible consequence of failing to do so.  The usher’s oath on jury retirement does seem particularly outmoded: I swear by Almighty God that I will keep this jury in some private and convenient place.  I will not suffer anyone to speak to them nor will I speak to them myself concerning the trial this day unless it be to ask them if they are agreed on their verdict.

Complaints about tidiness of paperwork seem especially trivial and pointless.  Data protection is an extremely important aspect of a barrister’s professional obligations with swingeing fines imposed by the Information Commissioners, as exemplified by this £200,000 penalty imposed on the CPS for loss of laptops, however that can’t legitimise a moan about how beautifully counsel’s bundles are maintained during the course of a trial.  There is no evidence at all that a tidy desk = a tidy mind and some of the most brilliant people of all operate in organised chaos.  I hasten to add this is not a plea in mitigation…

But the complaint that really rankles is the one that alleges trickery, games and a focus on getting people off.  If you are instructed to defend in criminal proceedings it is axiomatic that you must do so to the best of your skill and ability.  Game playing and trickery is not merely unprofessional and subject to disciplinary sanction it could, in some circumstances, be illegal.  The whole point of an adversarial court based process is that evidence is tested.  Being tested in any forum is unlikely to be a pleasant experience but when a defendant’s liberty and reputation is at stake a degree of rigour about the process is essential.

As I have said this report contains some sensible proposals but it is sad that its legitimacy is self-sabotaged by unparticularised allegations about sharp practice and professional impropriety.  Barristers are trained to focus on detail and not rely on sweeping and unfounded generalisations.  It would help if the Criminal Justice Alliance had followed suit.

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