Sunday, August 16, 2009

Justice delayed... justice denied, as any lawyer worth his salt will be able to tell you. Let me know what you think of this all-too-typical scenario, plucked from the mire of cases sloshing about within the OBM.

For those unfamiliar with "the OBM", it's not an oblique reference to a recently elected chap from across the pond, it's the Optimum Business Model -- see further down this page for a full explanation.

This case involved harassment of a partner, phone calls, unwanted visits, etc., etc., so was classed as occurring in a domestic context. Such matters are referred to as "DV" cases, short for "domestic violence", even where physical violence is entirely absent.

Mrs called the police, Mr was arrested, and held by the police overnight, to be produced before a bench. He was remanded in custody on his first appearance the following morning. So far, so utterly typical.

A week later he was bailed. Six days after that, a case management hearing (CMH) was held, and no primary disclosure had taken place -- staffing issues mean there simply aren't enough lawyers to go round the cases. A week later a pre-trial review was held, primary disclosure was served, and the following day his bail conditions were varied. 12 days after that, the first trial listing rolled around.

She turned up, which is relatively unusual in and of itself, and the matter was adjourned, as court time being hard-pressed, and there were further disclosure issues to resolve before beginning the trial.

Six weeks after the first go at a trial, a second pre-trial review was held, and the CPS file didn't turn up. The following day it did, and a date was set for trial. 19 days after the third pre-trial review, the fourth pre-trial review was held. Still with me?

This date was set one week before the trial, to ensure that everything was done. I had the pleasure of opening this file on the eve of pre-trial review number 4, and finding that not one jot or iota of work had been done.

I spent the better part of a day lashing the case into order as best I could, served almost a dozen statements, expert reports in relation to mobile telephones, medical reports and photographs, as well as a bad character application. Of course, I wasn't going to be presenting the case in court, so I drafted a note to try and summarise the four-inch-thick bundle as best I could.

So, if you were defending him, what do you do? Is it fair to try a defendant with so much evidence served only a week before a trial? How impressed is the complainant going to be with the progress of this matter? How impressed is the bench going to be, for that matter? First appearance to second attempt at trial; 102 days, give or take some atrocious mental arithmetic.

I wish this was an isolated case, but the truth is that I am often instructed to apply for an adjournment in order to rectify some abject failure to serve a particular item, usually in the face of weary disbelief from the bench, and in the face of a correspondence file bulging with written requests for said item from the defence.

Unfortunately, "More Lawyers!" has never been a vote-winning slogan, and so we will continue to be cut, rationalised, consolidated, and streamlined until the whole thing collapses about our ears.


  1. Just a thought
    But why not allocate cases as they arrive in the office to particular prosecutors who would have complete responsibility for them from beginning to end. It should not beyond the wit of man for each prosecutor to arrange his/her case load and adjust bail dates as necessary so they are in court for a fraction of the week and in the office for the rest.
    We could even call them 'the prosecutor in the case'.
    But wait.. that's more or less what we used to do years ago in the police and since I'm only a police officer what would I know ...
    I'm sure many people will rush to laugh at such a luderciously simple solution to this problem

  2. Well yes, that is exactly what used to happen, and that's what happened when "lay prosecutors", i.e. police officers, went to court. No-one will rush to laugh at that, least of all me. It's not simple, though, and requires careful diary management and case allocation, as any firm of defence solicitors will be able to tell you.

    By the way, I'm assuming that your comment wasn't sarcastic, as the spelling of "ludicrous" was such that I'm forced to conclude your use of literary devices is inadvertent.

  3. In our office, we have been usuing a similarly silly system for our police station bail to returns. We had an office meeting last week and listening to people expalin that the system was A will check them, but if A forgets then B should remind A; however, if A and B both forget then 'somebody else' should look at the diary and make sure that either A or B check the bail to returns...

    We've now rearranged things so that BTRs are allocated to fee-earner who has the responsibility of checking his case each day - simple... hopefully it will work!

  4. I think ludercious is a brilliant word. Ludicrous Justice.

  5. If anyone thinks there is Justice in our courts think again. It's a pure lottery and soon as legal aid disappears down the plughole only the well off will be able to afford the mister loopholes of this word to get them off. The whole sorry mess is riddled with incompetence,meaningless targets and people in jobs running the show who are frightened to say boo to a goose for fear of being sidelined.

  6. Just following on from that little nugget. Yes, our justice system is pretty pathetic; the delays are mind boggling at times despite custody time-limits etc. Of course, no one can get locked up these days in the magistrates' courts unless they are effectively a danger to life and limb:and most are,so delay runs away with itself. The boys in blue are chasing their tail with never ending forms to fill in(despite the so called streamlined process- streamlined I don't think so. It's almost imposssible to read and the blank pages are bewildering and some mighty trees must have given their lives in the production of this dross.
    But delay has many causes. Take for example the spurious election for trial at the crown court. Not really an election for a TRIAL but for a late guilty plea, but of course the solicitor advocates who are taking the bread from the mouths of the Bar are laughing all the way to the bank.They score a whacking great double fee and nothing happens to their client for dragging things out as they will always have an excuse that some papers of somesort or some disclosure hasn't been made. Every body seems to miss the fact that the defendanyt admitted the offence in his interview. A starnge old world!!

  7. Guilty pleas in the Crown Court are very sensible from a defence point of view. The time spent on remand between arrest and sentence, is not spent in the general prison population, and you get full privileges.

    The days already served are ordered to count towards the eventual sentence to such an extent that I certainly wouldn't advise someone to plead guilty in the mags if it was certain to go up the road. "No indication of plea, Sir".

  8. That just demonstrates how it isall just a pathetic game- no sign of justice.