Proper prosecutors and Independent advocates

When I was a child we moved into a new house and piled all the boxes into a first floor room. Shortly after that there was a sound like the end of the world followed immediately by a cloud of dust. The ceiling of the room below had quite literally collapsed. And the thing about a collapsed ceiling is that it requires immediate attention. Whatever strains, stresses and priorities were otherwise distracting you it goes straight to the top of the list.

Therefore when criminal lawyers talk about the collapse of the criminal justice system it's actually a bit of a misnomer (although in the case of the structural integrity of some court buildings it in fact is not). We haven't reached the point of literal lawlessness (yet). As the riots showed some cases can still be investigated, charged, prosecuted and sentenced with startling speed when the political and judicial will is there.

But for the rest? Wait a year or four for a charging decision and another two or three for a trial date. And the rest includes some exceptionally serious offences such as rape. Offences which the new government rightly states are a priority. Although in practice they are as much a priority as speedy boarding is for some airlines when it means you'll be first onto a bus that won't leave the departure gate until the last idling passenger has climbed on board.

At the risk of stating the obvious it is unacceptable when a police complaint of rape is made for it to take months for that allegation to be investigated. It is completely unacceptable for it to take years. And yet when lawyers talk about the collapse of the criminal justice system what they actually mean is that the completely unacceptable is accepted, without demur or redress, EVERY SINGLE DAY. The NHS talks about 'Never events'. In the CJS it feels increasingly as though 'Never events' are increasingly becoming 'Every events'.

One thing the new government has made abundantly clear is that there is no money. In that respect they are indistinguishable from their predecessors. Whether that assertion is accepted or acceptable (clue: it's not) any politician that states that position should rightly consider themselves under especial scrutiny for how they choose to spend such inadequate sums as the Treasury has deigned to make available to their Ministry.

Turning therefore to an announcement made by the new Lord Chancellor at the Labour Party Conference:

From next year - this Government will begin a national roll out of independent legal advocates for rape victims. The first step to delivering our manifesto promise of having independent advocates for rape victims in every part of the country.

More support for rape victims. Who in their right mind could argue against such a proposal? The short answer would seem to be only a wicked person or some kind of sexual offences apologist. Does that mean that such an announcement should be warmly applauded without question? Regrettably the answer to that is no.

A rape victim should be entitled, as a matter of course, under the current system, to consideration of their allegation by a proper officer, with proper training and proper experience. Once that officer is satisfied that there is sufficient evidence for prosecutorial decision making they should be entitled to consideration by a proper prosecutor, in a proper timeframe, with a proper charging decision made. Thereafter they should be entitled to proper consideration by the Court, in a proper timeframe, of the case with proper representation on both sides. It goes without saying that at every stage of the process the victim should be entitled to have it explained what is happening and what will happen next.

If that is not happening at the moment in every case, and only a wildly unrealistic person would say that it is, then that is indicative of problems with the system that require rectification. Where money is required to rectify those problems then money MUST be spent. Where the problems are not money then there must be rectification by other means.

I am intrigued by the word 'Independent' in relation to this proposed brand new breed of advocates. Independent from what? The police? The prosecution? The judge? If there is a need for such a cohort is the government therefore admitting that there is currently a lack of independence? If that is so then what is the government doing about it?

In the English system it can conceptually be very difficult for some complainants in serious sex cases to understand, or accept, that the prosecutor is not 'their' lawyer. That can, no doubt, have an alienating effect that might engender a feeling of being disenfranchised. Other countries do it differently, our way has always been an adversarial process between the state and the defendant. This can, and I would be inclined to accept, does run the risk that complainants can feel like mere observers to 'their' trial, notwithstanding that it is the defendant that is on trial.

The criminal justice process to an outsider can seem bewildering, frightening, labyrinthine, unfeeling. Complainants habitually do not meet prosecuting barristers until the day of trial, this is like awaiting major surgery and only meeting the surgeon minutes before going under. I don't think this is acceptable. There are reasons why it happens to do with lawyers' diaries, uncertainty around the identity of the advocate who will actually prosecute the trial, how such meetings would be paid for. They do not seem to me to be good reasons. It may just be that a proper lawyer having a proper meeting with a complainant could do much to reduce entirely many of the concerns complainants have about the trial process and therefore a belief that having a lawyer of their own would add anything to the process.