Wednesday, 8 September 2021

Dismissed for want of prosecution


A word from 2020 that quickly set everyone's teeth on edge was unprecedented. So many experiences were unique and never before experienced. Much has been written about the unprecedented experiences of the Criminal Justice System during this time and though the novelty of appearing before a Crown Court judge in my living room has long worn off I am no less grateful that in one small way there was an improvement in our way of operating. Brutal irony it is then that this tiny silver lining is in many places at risk of tarnish by an insistence upon attendance for wholly administrative hearings.

As I'm sure any proper lawyer would I'd swap that consolation prize in an instant for an overnight eradication of the backlog. But that isn't going to happen and day by day the pile of unresolved Crown Court trials grows ever bigger. The government recently announced that a cap on sitting days would be removed but that will in no way help if there aren't the judges to try the cases and the lawyers to litigate them.

Justice delayed is justice denied is by now an exhausted cliche rather than any kind of meaningful cautionary maxim. All justice these days is delayed, by months and even years. We need to realise that just as climate change imperils all of humanity there are changes affecting the Criminal Justice System which may very well lead to a cataclysmic updating of that maxim: justice destroyed is justice denied.

If I play Cassandra for a moment I would like you to imagine the following situations. You are gravely ill with cancer requiring immediate surgery. You turn up to hospital for your much needed operation. There are nurses there, the operating theatre is got ready. You wait. Eventually someone comes to find you, the operation won't go ahead that day, there is no surgeon available.

You have family in Australia. You book expensive flights for your family to fly there for Christmas, you plan and you book time off work. You turn up at the airport. You board the plane. You wait. Eventually a flight attendant announces that everyone will have to go home, there is no pilot available that day.

If these things happened to you would be horrified. You would want a refund, compensation, you would be complaining to your M.P., writing to The Times. Now let me tell you that for the last few weeks there have been increasing instances of trials being listed in the Crown Court and no barrister has turned up to prosecute them. I've even seen an example of there being no barrister available to defend one.

This is something that never, EVER happened before. In the magistrates' court if a prosecutor doesn't turn up the defendant can ask for the case to be dismissed. In the Crown Court, a courtroom, a judge and a jury will all have been allocated for the trial and like the start of a match at Wimbledon nothing can happen if one of the players doesn't appear on the court. Unlike Wimbledon there is no bye, another date has to be found and the disrupted lives of the defendant and witnesses are exposed to yet further disruption.

You won't have seen this on the news, you're unlikely to have read about it in the newspapers and you sure as hell won't hear the government talking about it, not when they can noisily announce a new crime of pet theft because the offence of theft theft apparently wasn't good enough.

But this new and, dare I say it, unprecedented phenomenon is profoundly troubling and augurs very ill for the future of our Criminal Justice System. For no barrister to turn up to a trial the allocated barrister has to be unavoidably unavailable. These days that is generally because they are inextricably involved in another case that has over run due to the delays that are bedevilling most trials. But is also has to mean that NOT ONE other prosecuting barrister is available to pick up the case. There are reports of scores of barristers' chambers whole circuits away from a particular court being asked if they have anyone that can accept a returned trial.

In a nutshell there are too many cases and not enough barristers. And yet just a few years ago there were too many barristers and not enough work. The Criminal Bar is not growing. Although it accepts newcomers every year it loses practitioners too. Getting going in the first 5 years after call is harder than ever. New barristers arrive in chambers with levels of debt that would make more senior members of the profession faint. If that debt can't be serviced, let alone reduced, market forces will prevail. Chambers are very public when they take a barrister on and very private when one heads for the exit.

A profession that can not renew itself sustainably will die. When that profession is responsible for administering the Criminal Justice System then justice will die. A time will come when your operation can't go ahead not because the surgeon didn't turn up that day but because there are no surgeons any more with the necessary skill and experience to operate.

You can't train an Old Bailey murder prosecutor in 6 months, you can't even train them in 6 years. Undertaking the most serious and sensitive criminal work is a lifetime's work. If every new barrister bails out due to financial pressure after 5 years where will we be in 15?

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