If Grayling really wants to help the Criminal Justice System…..

by Ray_North on September 16, 2014

UnknownChris Grayling has been at it again – this week he has announced his new plans to assist in the prosecution of offenders. The two headline grabbers have included making all advocates who carry out cases involving serious sexual offences to undergo special ‘advocacy’ training to ensure that they are fit for purpose; and, secondly to allow for new ‘victims rights’ charter that will enable the victims of sexual offences to give their victim impact statements in court.

As ever, I sigh to myself, in a sort of groaning, painful way, whenever I hear of one of Grayling’s and the Ministry of Justice’s pronouncements. And I do so, not just because I think that Chris Grayling is an odious politician who should consider undergoing a few courses himself before he is declared fit for purpose, but, because, his plans demonstrate his utter lack of understanding of the real world of Courts that I exist in and recognize.

Take the issue of specialist training for those advocates carrying out serious sexual offences – now, when I first started at the bar, to be briefed by the CPS in a rape or a case involving the commission of a serious sexual offence (particularly if it involved children), a barrister would have had to have demonstrated their competence over a number of years – it was rare that a barrister under ten years was instructed in such a case, and, if a barrister proved him or herself unsuited to the task, they wouldn’t be instructed again – it was a system that worked.

This changed, when, initially under Labour, but warmly encouraged by the coalition, it was decided that, to save money, prosecutions, whenever possible, would be carried out by in-house CPS advocates. This meant, that the CPS’ hands were tied when they were instructing in some serious cases and good barristers were overlooked in favour of cheaper in-house advocates. And, the only qualifying criteria that a CPS in-house advocate needed was an ability to show that he or she had, at some stage, seen a trial involving a sexual offence. I kid you not. That was all it took. As long as they had sat in, that was enough – such was the CPS and the Lord Chancellor’s departments desire to save money. And, it is this policy, not a lack of training courses, that has caused the decline in the quality of advocacy in the prosecution of serious sexual offences, if decline there has been.

I have no problem going on a course – though, I assert that the best training for being a barrister is years on the job, and the best assessors are the Judges and CPS Clerks who sit behind you and see whether you are carrying out the job of presenting a case to the jury in a skilled and professional way – which was the way it once was.

Moving on to victims’ charters – I’m sorry, but, I’m struggling with this concept as well. In the past, a victim of a crime would write an impact statement and the Judge would read it at sentence – if a Judge thought that any aspect of it amounted to an aggravating factor then he would declare so and sentence would reflect this – and, as most Judges are good and use their discretion properly and appropriately, it worked well.

Now, in recent months I have been involved in a couple of cases where the victim of a sexual offence, has come to Court to read out their statement – and the experience has been pretty much awful for all concerned.

On one occasion a clearly distressed victim found the sight of a court room full of people, so terrifying that she was unable to speak and ran out of the Court crying; and on another, a victim started to elicit facts that had not been part of the case against my client – this left me with a problem. Did I simply let her get on with it, as, perhaps Chris Grayling would have wanted, or, did I fulfill my duty to my client and point out to the Judge that my client hadn’t actually pleaded guilty to the acts that were being outlined by the victim. It was terrible – there she was, recounting these terrible events, when I had to interrupt her and ask for an adjournment. Thankfully, the Judge was an experienced old hand and was equally uncomfortable with what had been going on, as he, of course, has to sentence the defendant upon what he has been convicted of by a jury, or, what he has accepted by virtue of his plea – not what was being uttered, unchallenged and unchecked by an emotional young woman having her moment in Court (and I apologise if that sounds heartless, it’s not meant to be). The Judge, asked me what I wanted to do about it – and gave me the opportunity to challenge her by way of cross-examination or simply let her get on with it, assuring me that he would largely ignore what she was saying when he came to sentence. The former would have been horrible for her, as she wasn’t expecting to be cross-examined, whilst the latter, which was what I told the Judge we should do, was equally unsatisfactory, as it rendered the victim’s statement and testimony pointless and gave the whole proceedings an air of artificiality.

Now, don’t get me wrong – I’m not suggesting that victims should be forgotten in the criminal justice process – far from it, but, what I am suggesting is that if experienced barristers, judges, solicitors, clerks and others who are involved in the whole process, are allowed to get on with their job, in the professional way they know how, then there would be no need for tokenism such as this, because the views of the victim would be taken on board as a matter of course in the proper and most meaningful way.

And let me demonstrate what I mean by allowing lawyers the chance to get on with the job; let me tell you another story though, about something else that happened to me this week – I have been instructed by the CPS to prosecute a case of attempted murder. As you can imagine it is an important case, especially as a young woman was very nearly killed as a result of some horrific violence that was perpetrated upon her by her young friend.

The potential sentence is one of life – so the stakes are high for all sides.

The plea hearing was this week – for those of you who have never been involved in the process of the Crown Court, this is the hearing, as you’ve probably guessed, when someone gets the chance to plead guilty or not guilty. As the prosecutor, it is incumbent upon me to point out to the Judge the facts of the case and assist him in making any legal directions concerning the service of evidence and the likely issues for trial. It is an important hearing and in a case of this importance, you can’t just rock up to Court and wing it without reading the papers and knowing the case inside out.

As such, last week, I requested the papers from the CPS – to which I was told, that they were doing their best to collate all the papers, but, such was the shortage of manpower, they were struggling. I eventually, had the papers on the morning of the hearing after some poor sod at the CPS had worked manfully to get them together.

As it happens the plea hearing was fairly painless as the facts of the case are straightforward, but, it still isn’t good enough, it isn’t fair on any side, it belies the principle that underpins our justice system that the Crown brings the case and has to prove it on the evidence – and that means, providing this evidence to the Court via the prosecutor. Of course, my experience, isn’t the only one, each week, the struggling CPS is having to either offer no evidence in cases where there is evidence of a crime, or bringing cases to court that haven’t been properly prepared and investigated, and it is this that is unfair to victims of crime, rather than the rather abstract notion that they should have their say in the Courtroom as part of the justice process.

But, of course, this is where Chris Grayling and the coalition demonstrate their ignorance, because when it comes to an argument between doing things on the cheap and doing things properly, for them, austerity wins every time.

{ 3 comments… read them below or add one }

Fionauk512 September 16, 2014 at 9:30 pm

Grayling et al truly demonstrate that they know the price of everything but the value of nothing.


Geoff Elliott September 17, 2014 at 10:38 am

I’ll finish your sentence for you. It’s quite simple. He could resign. Full stop, end of debate.

What an utterly ill equipped man he is to fulfil the role he’s been given.


George_East September 17, 2014 at 11:32 am

It is this government all over – ill-thought out, tokenistic bull shit.


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