WITNESS COACHING

The Crown Prosecution Service [CPS] is going to encourage its advocates to coach witnesses before they give their evidence in court.  The thinking behind this serious tampering with a witness is to assist them in sticking to the script and to anticipate and deal with hostile questions flying at them from the defence lawyer.

I am a fan of most things American, but not their criminal legal system.  It’s very much like the curate’s egg, good in parts.  Their jury vetting process is a good idea, to weed out the brain-dead morons and the rednecks, but it’s taken to extremes. I suspect that if a juror during the vetting process wanted to serve on the jury, he’d give the right answer to fairly rudimentary questions, and the converse applies.  It reminds me of the McCarthy witch hunts of the fifties:  “Are you, or have you ever been, a member of the communist party?”  What sort of a jackassed question is that!

I remember some years ago prosecuting an actuarial fraud at the Old Bailey, and numeracy and literacy were essential prerequisites if the jury were to follow the evidence. In our system, where there is no jury vetting, once the prospective juror comes to the book to be sworn but before he is sworn, the prosecution or defence can object.  In that case, one of the prospective jurors was illiterate, but by the time we had all spotted it, it was too late, so he sat in the jury box looking totally bemused.  As it turned out, the judge was also totally bemused, so he stopped the trial, entered a not guilty verdict, and made the first tee by three o’clock.  Some sort of jury vetting would have helped.

The sentencing process leaves me totally bemused.  Talking of actuarial fraud, I am reminded of Bernie Madoff, who preyed on the greed of halfwits and made enormous sums of money in the process.  Once his scam was exposed and his grateful clients turned on him like a viper at the breast, he was sentenced to 150 years’ imprisonment.  That sort of sentence is ridiculous and brings the whole process into disrepute.

Lest I digress, back to witness coaching, or ‘prepping’ as the Americans would have it.  The real danger is that a ‘prepped’ witness is likely to give the ‘prepped’ answer and not the truth, the whole truth and nothing but the truth, but some version of it.  It is very tempting to point out to the witness where the weaknesses lie in their account, and to try and paper over the cracks.

I am a believer in the judge taking a firm grip on the trial.  If a witness is confused, it should be for the judge to clarify.  If the witness is getting upset, it should be for the judge to order a comfort break.  And most importantly of all, the judge should bring to an end the questioning of a witness if the questioning is too long or oppressive.  The judge is ideally placed to see fair play.  He should exercise his powers of intervention, which is far better than the very dubious practice of witness coaching.  Finally, it should be borne in mind that the defence must be told in advance that the prosecution witness has been coached.  That seems like an own goal.

AT THE BAILEY

THAT FRIDAY EVENING, as instructed, I phoned Berger’s Chambers.

‘Mr Berger will be at the Bailey on Monday,’ garbled the senior clerk, in between mouthfuls of tea and ginger nut crunchies. ‘So if you care to meet him in Chambers at nine o’clock sharp, he’ll walk down with you.’

I put down the phone with a frisson of excitement as I contemplated my first day in pupillage – and at the Bailey, no less. I had obviously underestimated my learned pupil master.

Berger of the Bailey! What a thrill!

According to my frequently boring lectures on the history of the English legal system, the Bailey – or, more precisely, the Old Bailey – was the highest criminal court in the land, and had been since 1673. It was where murderers, rapists, and other felons were prosecuted, convicted and then taken to a place of execution to be hanged by the neck until dead, and may God have mercy on their souls. Man, woman and child, guilty and innocent alike, were charged, condemned and dispatched to their Maker by Judges who had only a passing acquaintance with the law, and who went about the more pleasurable business of eating and drinking and fornicating without a moment’s reflection on the plight of those less fortunate than themselves.

Juries fared no better. They were threatened, cajoled and suborned into returning guilty verdicts regardless of the evidence, and those who had the temerity to kick against the prick were kept without food, drink, heat, or other creature comfort, until they saw the error of their ways.

I was as nervous as a kitten all weekend, and greatly relieved when the momentous day dawned. I was awake to greet it, which was just as well as it took me the best part of an hour to strap myself into the starched white collar, which was as stiff as a board and totally unyielding. I reflected that a dry run might have been a good idea, as the collar and I fought each other, neither willing to yield. But if I were to become a successful barrister I had to meet adversity head on. No good falling at the first hurdle. Vires in adversum, and all that.

Once locked into place, it felt like a medieval tourniquet. To make matters worse, I found it nigh on impossible to turn my head independently of my body, attracting a number of very strange looks and a helping hand across the road from an elderly lady as I made my way to the Underground.

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!

DO SQUATTERS HAVE RIGHTS?

It is now a criminal offence to ‘squat’ in another person’s property, and predictably, the battle lines have been drawn between the property owners, who think it’s an excellent change in the law, and the squatters and their various camp followers.  These include Crisis and Squatters’ Action For Secure Housing.

My next door neighbour, who lives in South Africa, rents out his well appointed converted barn, and for the most part, without problems.  He engages the services of a reputable letting agency which is tasked with the responsibility of ensuring that the renters behave themselves, pay the rent when due, and look after his home and its contents.

Sadly, the outgoing renters were a landlord’s worst nightmare, and it has cost him £2500 to put right the damage caused.  He has retained, and spent, the renters’ deposit, but that was insufficient to cover the renovation costs, and unless he can get the difference back from the agency, he will be seriously out of pocket.

Imagine how much greater would have been his misfortune, and the cost to him, if the renters had been squatters. For my part, I simply cannot understand why squatters think they have the right to enter private property without the owner’s permission, and remain there until the owner has obtained a court order to evict them. In many cases, before squatting was criminalised, this would take months.  The cost of litigation would be borne by the owner in its entirety, as squatters have no disclosable assets, and almost invariably, damage would be caused to the property which, yet again, would have to be repaired by the owner at his own expense.

As long ago as 1628, the English Jurist Sir Edward Coke wrote: “Domus sua cuique est tutissumum refugium”, which has been loosely translated as: “For a man’s house is his castle, and each man’s home is his safest refuge”. 

I accept that in an ideal and compassionate society, everybody should have a roof over their head and comfortable accommodation.  I also accept the submission from pressure groups that the lack of affordable housing is a real concern and needs addressing.  What I cannot accept is that anybody, regardless of their personal circumstances, has the right to trespass on private property, whether they look after it or trash it.

As a case in point, one home owner described how, after an extended stay in hospital, he returned to his house to find it occupied by squatters.  Needless to say, polite requests to vacate fell on deaf ears.  It took him four months to get an eviction order, and as his house had been trashed, the additional cost of renovating it.  And to make matters worse, during those four months, he had to find alternative accommodation.  I suppose he could have squatted somewhere, but the thought never crossed his mind!

There is simply no excuse for squatting, full stop! I support the change in the law, which now empowers the police to evict squatters without a court order and PDQ. 

THE LAW IS A ASS

I wrote some time ago [see my article Stand not on the order of your going] that the criminal law should not be involved in assisted suicide, and that the Suicide Act 1961 should be repealed. I am flattered to read that the aptly named Lord Judge, the Lord Chief Justice of England and Wales, has joined the debate and thrown the full weight of his authority behind my proposals.

But in his review, Lord Judge highlighted the dilemma facing the courts in the event of a prosecution, namely that the courts have only limited powers to intervene, and these must be judiciously exercised. It is all well and good for his lordship to pontificate on the role of the court to “prevent or extinguish the effect of any arbitrary or unprincipled exercise by the Director of Public Prosecutions of his responsibilities,” but in reality, unless the prosecution is brought with mala fides or is oppressive or vexatious, there is little the court can do to prevent or extinguish a prosecution until it has run its course.

This means that the inevitable distress caused to the arrested person cannot be avoided whilst the police carry out their investigation, the suspect is questioned under caution and charged, and a date set for a preliminary hearing. At this stage, the court may make its views known about the wisdom of proceeding to trial, but the final decision rests with the prosecution, and the only weapon in the court’s armoury is the threat of wasted costs.

If the prosecutor so determines, the case will go to trial, and few judges with a vested interest in their index linked pensions are prepared to put their heads above the parapet. It is only at the conclusion of the prosecution case that the judge can then intervene and direct the jury to acquit, but again, the power to do so must be based on the evidence, and not on sentiment, and if there is sufficient evidence to establish a prima facie case, the trial must proceed to its conclusion. The defendant must then hope there are sufficient members of the jury belonging to the lobby group Dignity in Dying to secure an acquittal. If, however, the jury is peppered with followers of the lobby group Right to Life, then a guilty verdict is a real possibility. And so it goes on.

As I wrote last October, the simple solution is to decriminalise assisted suicide and repeal the Act, but sadly, the government have bigger fish to fry, and there are no plans to review it. Such a pity, when the government can make available seven hundred hours to debate the hunting of foxes, and when the vast majority of the great British public couldn’t give a rat’s crap. Strange priorities, strange government.

POSTSCRIPT: Excitement mounts to fever pitch. Jacqui Smith, the hitherto invisible Secretary of State for Home Affairs, has actually been spotted, albeit briefly, outside a run down tenement building in a district of London called Nunhead, wherever that may be, claiming to be permanently resident there when the House of Commons is in session. She was followed to the building by the usual media scrum, and guess what?? She spent several minutes fumbling at the door with a key that didn’t fit, trying to gain access to her ‘permanent’ residence. There’s more to this upstanding public servant than meets the eye!