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‘Monday’ Message 16.07.19

Chair’s Update:
Chris Henley QC



‘Released under investigation’ under investigation:

You may have read in yesterday’s Times that the National Police Chiefs Council has issued new advice and guidance requiring the police to update suspects who have been ‘released under investigation’ (RUI), or their solicitors, every 30 days about the progress of their cases. An inspector will now monitor each investigation after 3 months, and a superintendent will conduct a further review after 6 months, if no final decision on charge has been made.

Criminal solicitors across the country know very well how RUI has increasingly been used as a euphemism for relative inaction, for a failure to pursue lines of enquiry with full and immediate focus. Many investigations simply fade away, as evidence and investigative momentum is lost. Suspects who historically would have been charged to appear in court as ‘overnights’ are now left alone for months. For some this will be seen as an unexpectedly happy event, putting off the evil day – rearrests for new offences whilst RUI’d have been estimated at up to 20% – but for a very significant number this legal limbo brings the most stressful, life-paralysing uncertainty. For victims too, the result of this investigative statis is surely a sapping of confidence in and respect for the criminal justice system. It must result in significant attrition as witnesses and complainants decide to move on with their lives.

What was intended to bring greater certainty, and presumably focus and efficiency, a strict limit to time on formal pre-charge police bail, has had the opposite effect. The consequences are bad for everyone involved. We all know what justice delayed is. Sadly, this is symptomatic of the relentless squeeze on resources for the CJS. The police and CPS don’t have anything like sufficient capacity to deliver what the public needs, so like water irresistibly finding and seeping through cracks, an opportunity to put off more routine or demanding work is seized upon in favour of more high profile or politically pressing matters. The Met police is overwhelmed by knife crime in the capital, and without much greater resources it is impossible for them to investigate other crime with the tenacity and rigour the public deserve. The result has been more and more RUI; cases that could be charged immediately, or with little delay, if the arrest was properly followed through as used to be the case, are instead kicked off to who knows when.

We’ll soon discover if the new guidance makes a difference. Its hard to see how things can change radically without a substantial increase in funding.

Listless listing:

Sadly, the fall in sitting days, the embargo on Recorders at so many courts, and some depressingly thoughtless behaviour continues to blight too many of your lives. The CBA continues to receive too many emails from you citing miserable examples of all three.  Counsel in a 6-8 week trial which started at 2.00pm yesterday were suddenly informed at 1.55pm that 4 weeks into the trial the Judge will be off for a two week holiday. Of course Judges need holidays, and these may very occasionally interrupt a trial, but surely a decent amount of notice is the very least we are entitled to. It’s hard enough to plan as it is, to say nothing of the rudeness.

Another of you is completely fed up and demoralised reporting that not only was a family holiday lost earlier this year when a fixture was put back, with less than 24 hrs notice, but last week the same person’s fixed date trial for an extremely stressed client of good character, whose professional future hangs in the balance, was taken out at 3.30pm the afternoon before. Counsel had already paid a deposit to secure accommodation for the duration of the trial and five defence witnesses had made arrangements to attend. It’s all done so casually, with no apology, or one imagines much empathy for the defendant or witnesses, and definitely no financial compensation for anyone. It’s a shocking way to treat people. Again, fundamentally this is obviously about resources. There just isn’t enough capacity in our criminal courts. No one should maintain or pretend otherwise.

And one more has just come in……
Snaresbrook, 6 courts closed and not a single Recorder sitting, couldn’t deal with a two day outraging public decency case with a reasonably young defendant of good character and a reasonably young prosecution witness who lives in Scotland. The videolink request, weeks ago uploaded, and subsequently confirmed at the PTR, hadn’t been actioned. So the trial has been adjourned. The soonest slot for a two day fixture is March 9th 2020, the earliest warned list date is 2nd March 2020. As counsel commented ‘Sometimes I don’t know whether to laugh or cry.’ The completely mad state of things. Maybe, just maybe, open some of those closed courtrooms?

St Joanne:

In much happier news the completely brilliant Jo Cecil was crowned (or maybe haloed) ‘legal aid barrister of the year’ at this year’s LALYs, for her ceaseless campaigning on legal aid, youth justice issues and access to justice generally. As examples, she sat on the Bach Commission, and came up with the idea of distributing free copies of the Secret Barrister book to every MP, crowdfunded for it, and organised the launch event at the Commons. She never stops. I have no idea where she gets her energy and optimism from. She is surely the closest thing the criminal bar has to 24 hour sunshine.

CBA Vice Chair Elections:

Please vote. We have three strong candidates. Bernie, James and Nigel have set out their personal agendas in very different ways. The CBA needs effective and committed leadership as never before. Caroline has been a huge support to me over the past (almost) year. She will need the same from her Vice. I haven’t yet decided how to cast my vote. The key question for me is who will provide wise, consistent and dogged leadership, who will take the time to respond thoughtfully and individually to members’ concerns? And who inspires the most confidence that they can choose the right battles, can listen open-mindedly to a range of opinions, and by their calm and reasoned tenacity can command respect across the profession, the judiciary and government? Not easy. VOTE HERE

And Finally:

I was accused of being ‘woke’ by one correspondent following last week’s message. I don’t think it was a compliment. Intolerance of racial and cultural prejudice, homophobia and misogyny is or should be firmly in the mainstream. And for fear of being called a ‘double woke’, rather than a good egg, does anybody else agree that if the serially abusive child man Donald Trump had said on the tube or on a bus what he tweeted about the four Democratic Congresswomen he would be prosecuted for a racially aggravated public order offence? I’m sorry but how is he even possible. Fortunately, I just can’t imagine such a person being elected here….

I have been persuaded not to offer copies of the Love Island: Pool Party 2019 CD to a lucky few of you. Apparently it just wouldn’t be appropriate. But It has been suggested that I might enjoy ‘First Dates’ which is apparently filmed in the Paternoster Chop House (pretty strained and tenuous hook). I just do not believe it could possibly have the epic, characterful depth of L.I. but maybe come the 31st August when my days are impossibly long and empty once again I will see if we might be a match after all.

Here’s a question for you; can song lyrics ever be considered poetry? Well, I probably incline towards the not but if anything ever could be try the words to ‘Subterranean Homesick Blues’, by Bob Dylan who performed this week in Hyde Park, or ‘Into My Arms’ by Nick Cave which comes closest to poetry for me. In the meantime here’s a proper one to read this week, ‘By Candlelight’ – Sylvia Plath. ‘

‘….one match scratch makes you real….’

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