Sunday, 4 November 2018

Final Warning - Time to Fix Warned Lists

There are three reasons why guilty defendants do not plead guilty before the day of trial.  First they hope witnesses won't turn up for the trial.  Secondly they hope the prosecution won't get its house in order in time for the trial.  Thirdly they are in denial.  

All three reasons explain why warned lists exist.  The courts have learnt from long experience that very often trials do not proceed when they're listed.  The prosecution pulls the plug, the parties aren't ready, witnesses don't turn up - the defendant decides that, after all, he did do the crime.  Because the received wisdom is that an empty court is a wasted court there need to be back up trials, understudies waiting in the wings ready to run onto the stage when the main attraction drops out at the last minute.

If your model of an efficient justice system entails judges sitting in full fig on the bench for the maximum number of minutes a day then you will never relinquish the warned list trial.  Of course it may be a matter of supreme indifference to you that they are presiding over half prepared trials or trials that that take twice as long as they should do because of the difficulty of getting witnesses to court.  Bums on seats laddy, that's what it's all about.

Except it really, really isn't.  It is difficult to draw parallels with other sphere of your life where the warned list concept might apply.  Yes the NHS in its current parlous state might mess you about a bit but when was the last time you were told your vital cancer surgery might start on Monday, or Tuesday, or Wednesday, or Thursday or Friday or if not that week then 3 months hence?  Imagine booking a flight to Barcelona for your holiday turning up at the airport and being told to go away and sit by your phone because they might be able to get you on a flight the next day and if not then the day after or maybe not at all.  You would rightly be incensed by such treatment, want your money back, write letters to your M.P.

Yet the Crown Court does this to victims of serious crime and defendants every single day.  Explaining this concept to newcomers to the court system is embarrassing and difficult to justify.  Their case, possibly one of the most important events in their life, doesn't even warrant a date in the diary just a nebulous time period during which they can't do anything else except wait anxiously on the off chance that a gap in the court's diary will emerge.

Just as vexing is the concept of a floating trial whereby everybody gets dressed up to go to court only to be told that the trial which everybody expected to 'crack' (plead out) is in fact full steam ahead and so there is no room at the inn.  This is a frankly contemptuous way to treat often traumatised and frightened people.

And all of this before one even addresses the flaw at the heart of the warned list system.  Warned list trials are supposed to ensure the efficient and smooth running of the courts.  However because of the professional (and familial) chaos they wreak in everybody's lives they do anything but produce efficiency.  In the vast majority of cases criminal barristers are not paid for their time.  They are paid for being in court when a trial happens or a guilty plea is entered.  Therefore all preparation for a trial is essentially free.  That is perfectly fair and proper if the barrister that prepares the case does the trial.  However the warned list system means that very often is not the case.

I can have a case in my diary for months on which I have advised, attended conferences and hearings and because it is arbitrarily listed on a Wednesday and not a Monday another barrister picks up the case the night before, has to mug up on the papers like a student cramming for an exam and keeps all the money.  It is stressful for my colleague, impoverishing for me and unfair on the parties to the case who can find that both the prosecution and the defence barrister have no more than 18 hours 'knowledge' of the case.

This system is wholly inimical to proper case ownership, responsibility for the preparation and preparedness of trials and the cultivating of the sort of candid, frank and trusting relationship between barrister and defendant that may result in a trial being avoided all together.

Cases with experts are fixed because the courts don't believe in messing around professional witnesses but aren't prepared to accord this courtesy to the victims of crime.  Sex cases are usually fixed (although, outrageously not invariably) because the courts acknowledge that complainants in those kinds of cases may be especially traumatised.  But, in what are unacceptably referred to as volume crime cases, all parties should expect to be at the court's beck and call.

All practitioners know how the MoJ loves a pilot so my suggestion is that a few courts are selected to trial universal listing of trials as fixtures; from the shortest affray to the longest fraud every judge, every barrister, every defendant, every witness, every police officer and every clerk will know exactly when a trial will start.  Let's see what effect that has on trial readiness and the effectiveness of trials.

Where there can be no doubt is the positive effect it will have on the planning of the lives of all those involved in the trial process both professionally and personally.