UNFIT FOR PURPOSE

There are many barristers who, despite all the evidence to the contrary, are still intent on grinding out a practice in crime.  It should come as no surprise to the vast majority of them, but crime doesn’t pay!

For some time, the Criminal Bar has been under siege.  At the forefront of the attack has been successive Lord Chancellors, going back to Maggie Thatcher’s time, who have been mandated to reduce the legal aid bill, and the biggest consumer has been crime.  We have all read with astonishment the enormous legal aid bills submitted to the taxpayer, most recently by Asil Nadir and his team, with a bill in the region of £1 million.

But for every Asil Nadir there are thousands accused of crime who genuinely cannot afford to pay for their representation, so legal aid is an essential service if justice is to be done and seen to be done. The hallmark of a civilised society is the way in which we treat our most disadvantaged, the more so where they risk a lenghty sentence of imprisonment.

But when you have a service driven primarily by budgetary considerations, something has to give, and regrettably, it is the quality of the representation available that is the first casuality. And so it was when defence solicitors acquired their higher rights of audience, with the maxim “you don’t buy a dog and bark yourself”, these solicitors are chancing their arm in the art of advocacy and doing their own cases where they had formerly instructed counsel.

This is not to suggest that all defence solicitors are hopeless, but advocacy plays no part in their training, so they are immediately on the back foot when going forward.  Their clients are ill-prepared to judge their advocacy skills, and judges are constrained against throwing their wigs in the air and stomping off the Bench.

As part of this ongoing policy to drive down the legal aid bill, the Crown Prosecution Service was created, along with the usual budgetary constraints, and they too have climbed on board the advocacy bandwagon.  In a recently disclosed email, CPS “advocates” are enjoined to use a ‘tick’ and ‘star’ system on each and every brief.  The tick indicates possible complications that not even the most ambitious advocate would want to tackle, so that brief will be farmed out to counsel, and he can pick up the pieces.  The star indicates a brief to be kept ‘in-house’ for the aspiring CPS advocate to cut his teeth on.  The criminal law should not be a lottery with those least qualified deciding if the case should be kept in-house or farmed out to the luckless barrister, and this applies equally to prosecutors and defenders alike.

However, I believe we reached the point of no return some years ago, and the Criminal Bar has only itself to blame for this farrago.  What lobbying that was done was very half-hearted and wholly ineffectual. But ultimately the government as the sole provider of legal aid has the whip hand, and with so many mice chasing the same piece of cheese, it’s a case of ‘take it or leave it’. Put crudely, get stuffed!

LOVE IS BLIND

I read a suggestion the other day from the Association of Chief Police Officers (P.L.O.D) concerning men who have a history of violence towards their partners. They support a Register, similar to the Sex Offenders Register, listing the details and current whereabouts of those convicted of domestic violence, and who are, by inference, likely to reoffend.

This proposal has been around for some time. It was last kicked into the long grass back in 2003, when some twerp in the Home Office with nothing better to do, produced a consultation document to this effect. It went down like a lead balloon, and until PLOD breathed new life into it, everybody thought it was dead and buried.

Love is a strange emotion, bringing together the most unlikely partners, and according to statistics, around 60% of partners stick it out through thick and thin, for richer for poorer and all that.

Domestic violence is all too real, not just for battered women, but for PLOD, the prosecuting authorities and the courts. In its extreme form, the violence is almost unimaginable, and often committed in front of children. All too often, the violent man suffers from a pathological disorder, which accounts for unexplained mood swings, and once the dark mood passes, he is full of remorse.

Then again, there are a few, hopelessly inadequate in all walks of life, who take a perverse and sadistic pleasure in inflicting pain on defenceless women, and for whom little or nothing can be said in mitigation.

But the real problem is not the fact that some men are given to violence, it’s the emotion that cannot be stripped from the equation. Time and again, even after severe beatings, the violent man begs his victim to forgive him and take him back, and time and again, she does so, knowing she shouldn’t, but hoping against hope that he will reform, and that this time, he means it.

So what is to be done? A Register is not the way forward. It may help, so I don’t dismiss the idea out of hand, but it’s not the solution. The solution is all about squaring the circle, which is remarkably unhelpful. First, there must be much more support for battered women, and not just a night or two in a Women’s Refuge. A battered woman should be treated from the outset as a victim of crime, with the police being informed as soon as she walks through the door. They, in turn, must give the case the same priority as they should over any allegation of violence, which must rule out a caution or other labour saving and utterly useless device. There already exists a plethora of legal sanctions to keep the offender away from his battered partner, on pain of imprisonment regardless of conviction, and these must be used to full effect.

But above all, the Crown Prosecution Service must be more supportive and proactive. They should know that between arrest and trial, the battered partner is likely to retract her complaint, either because she wants him back, or, more likely, she fears the consequences of giving evidence. After all, he knows where she lives.

The Social Services and the local authority must also put their collective shoulders to the wheel. The battered woman needs emotional as well as physical support to rebuild her life, and not simply expressions of condolence.

The CPS must take the lead in prosecuting the offender, even where the battered woman is a reluctant witness. They too have powers, not just to compel her to attend trial with a witness summons, but screens or a video link to allow her to give her evidence in the least stressful circumstances.

All this costs money, and it’s easy to throw in the towel with a reluctant witness. After all, if the battered woman can’t be bothered to turn up for trial, or having turned up, departs from the script, why bother?

We should bother because it’s our duty to protect the vulnerable, the more so where children are involved. After all, Pontius Pilate washed his hands, and look where it got him.