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Monday Message 25.04.16

Chairman’s Update: 
Mark Fenhalls QC


I am enormously indebted to others who have contributed so much to the substance of this week’s message.  When you read it you will understand what I mean. 

Topics to be covered:  IT in prison cells and prisons; the Rules as to what must be served before PTPH and PTPH listing; DVD players in Court; myths about the connection of Apple products and the ClickShare system; and perhaps most importantly of all the work of the Ben Kinsella Trust.

So even if you do not find it useful, because you are on top of all of this, you will have friends and colleagues who are not and so please do what you can to make sure as many of them read it too.

Prisons, Court Cells and IT
Please find the letter concerning laptops and tablets which you can now use in courts and (almost) all prisons in the SE HERE.  Hopefully this will simplify your working lives.  I would imagine that NOMS wants this letter rolled out nationally as soon as possible and we will encourage this as much as we can.

Sadly, it does not yet work in the High Security Estate (i.e. HMP Belmarsh) but we are working on that. 

What must be uploaded before the PTPH, according to the Rules?
We are often hampered by short (and inaccurate) police summaries being the only thing on the DCS before PTPH.  None of us are impressed by the judicial sneer “well he knows if he’s done it”.  We all know that that is sometimes true but not always.  And of course you, the barrister, do not know, do you.  So if any advocate has any role to play in our system, one might have thought it is to advise on the material served by the Crown as it seeks to discharge the state’s obligation to show why someone has committed a crime. 

So in the unlikely event that any of the Judges you appear in front of seem to have momentarily forgotten the Rules, here is a simple digest for you.  But check it for yourselves too.

The starting point is the Criminal Procedure Rules and the Practice Directions.  If you have not read them, it is time you did.  Refresh your memories.  The Rules ought to be fundamental to your whole approach.  The CACD says so almost constantly.  Traditionalists may have philosophical objections, but these are the Rules.  For those who are intimately familiar with what follows, please skip past…

I am sure none of you need reminding of the “overarching principles” described in the Leveson Review.

  • proportionate disclosure of material to the defence” (para 25);
  • Case ownership: “there must be one person who is (and is identified to be) responsible for the conduct of the case” (para 26);
  • A duty of direct engagement  

What does this mean in reality?  Pause and please don’t tweet an answer in anger before finishing reading this.  And I promise I will also cover the vexed subject of List Officers who are refusing to obey the Rules by declining to show some flexibility concerning the listing arrangements for PTPHs.
Rule 8 of the Criminal Procedure Rules 2015.  This extends the scope of the prosecution’s duty to supply “initial details” of the prosecution case so that it applies in all cases.  So what has to be disclosed (if the accused so requests) no later than the date of the first hearing?
Initial details of the prosecution case (“IDPC”) must now include:
a. where, immediately before the first hearing in the magistrates’ court, the defendant was in police custody for the offence charged: –

  • a summary of the circumstances of the offence, and
  • the defendant’s criminal record, if any; 

b. in all other cases,

  • a summary of the circumstances of the offence;
  • any account given by the defendant in interview, whether contained in that summary or in another document;
  • any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence;
  • the defendant’s criminal record, if any; and
  • any available victim personal statement 

So it seems to me that statements and exhibits that are in the possession of the police or have been provided by the police to the CPS (perhaps for a charging decision) and are therefore on CPS systems already, must surely be “available” for these purposes.  I am not asking for every piece of continuity, but the loser’s statement… the alleged victim in the (sexual) assault… the statement setting out what drugs were seized from whom or where… each case will differ.  Any other interpretation would be astonishing.
Practice Direction Paragraph 3A.4. The initial details that are supplied must include sufficient information to allow the defendant and the court at the first hearing to take an informed view: – 

  • on plea; 
  • on venue for trial (if applicable);
  • for the purposes of case management; or
  • for the purposes of sentencing (including committal for sentence, if applicable)

Paragraph 3A.12.  The accused is on bail and prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court – IDPC must be sufficient to assist the court, in order to identify the real issues and to give appropriate directions for an effective trial”.
Practice Direction Paragraph 3A.16 requires that an indictment should be lodged at least 7 days in advance of the PTPH 

CPR Rule 10.1(1)(a) – The prosecutor must serve a draft indictment on the Crown Court officer, not more than 28 days after service on the defendant and on the Crown Court officer of copies of the documents containing the evidence on which the charge or charges are based.

BCM – PTPH must take place between 28 – 35 days of sending.  So it looks like the relevant statements and exhibits must be served (uploaded) a maximum of 21 days after sending.

Practice Direction, Paragraph 3A.12.  Where a guilty plea is not anticipated and the defendant is on bail “unless there is good reason not to” the prosecution should also have served:

  • A summary of the circumstances of the offence(s) including a summary of any account given by the defendant in interview
  • Statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management
  • any relevant CCTV that would be relied upon at trial
  • any Streamlined Forensic Report;
  • details of witness availability, as far as they are known at that hearing;
  • an indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant;
  • any information as to special measures, bad character or hearsay, where applicable

…all this before the first appearance at the Magistrates’ court

List officers should be flexible in relation to listing PTPHs.  If they are not, then I think they are in breach of the policy expressed by the SPJ.  Read, for example, the 5th BCM newsletter issued by the SPJ, which spells out the national policy that allows for some flexibility, of course acknowledging that such discretion must be carefully exercised.

This followed a decision by the National Implementation Team for BCM on 23rd October.  This was the same meeting that decided that certain cases (murder, terrorism, s28 hearings and cases where there are witnesses under ten years old) should be exempt from the BCM timetables.

The NIT agreed that each Circuit may establish listing practices which result in the listing of a PTPH exceeding 28 days, so long as it is not more than 35 days from the sending in order to take account of a number of matters including (iv) to “enable the trial advocate to attend the PTPH”.

Of course you can’t just move things around willy-nilly and we all need to show a sense of proportion.  But the fact remains that this flexibility was created to acknowledge that advocates who have engaged and managed a case from the earliest moment, should be entitled to a little latitude from list officers.  I am under no illusions as to how disheartening and counter-productive it is if courts are indifferent to the need for the instructed advocate (who has done all the work to prepare the case) to attend the PTPH.  I am confident Circuit Leaders will be delighted to help raise this issue with Residents and Presiders.   

DVD Players in Court
I was told last week that perfectly good DVD players were being removed from court on the assumption that prosecution counsel would play the ABEs etc through her laptop.  This turns out not to be wholly accurate.  Apparently the CJS Efficiency Programme should mean each Crown Court courtroom has a Samsung USB DVD Drive for Advocates to use.  

And as for using your own device. I know some do not have DVD drives (me included with my tablet) and so we need to work around that.  But I discovered something else.  When I complained to someone who is magnificently “IT literate” and he said to me “ah well you need to know about extended desktop”.
It turns out that it is possible to connect your device through ClickShare and play an ABE on the big screen and have your private papers/ notes/ screen on your own device but without all this appearing to the jury and the rest of the world.

This is how, for example, if your machine operates on Windows 10: 

Understanding Extended Monitors 
How to Use Extended Desktop Windows 10

I am sure the equivalent solutions exist for other operating systems, not much more than a couple of clicks away.
And finally on the subject of IT, Woolwich is having new screens installed in May, one court room at a time.  Where such work is going on, that court will sit Maxwell hours to minimise disruption.  Please check lists carefully.

DCS and Apple Products
iOS (iPad/iPhone) does work with Clickshare, but there is a difference between Magistrates’ Courts and Crown Court. 

  • iOS should work seamlessly in the Crown Court (now) as this has the latest Firmware.  You only need to select “AirPlay” on the device and then connect to the ClickShare Basestation.  
  • iOS in the Magistrates needs a Firmware update to allow iOS 9 (onwards) to work with ClickShare via Airplay.  HMCTS are just starting the process of updating all 754 ClickShare Basestations in the Magistrates’ Courts. There is an iOS ClickShare Button App on the App Store, this will then allow STATIC IMAGES ONLY to be shown via the ClickShare system, but HMCTS staff have to pass out the ClickShare Basestation password to allow the App to connect. This will not show video or pay audio via ClickShare.  
  • It is expected that HMCTS will have updated all the ClickShare Basestations on the Magistrates’ Courts over the next 8 weeks (i.e. by the end of June).

ClickShare works with Apple MacBooks (OSX Operating Systems) …. What some advocates may be experiencing is the Apple OSX built-in DVD software has limited functions and does not allow for ClickShare streaming, this is not a fault in ClickShare, this is how Apple have configured the built-in DVD software.  But this can be fixed easily.
The Fix …. Download VLC Media Player.  This is an open-source, free to download, Mac and Windows compatible fully featured multi-media player.  So, VLC will work seamlessly with ClickShare, playing 100’s of video file formats and audio formats.  Apparently there are some impressive zoom functions to allow the user to enlarge a portion of the video playback as well as all the usual frame advance and super “slow-mo” features.
This is all covered HERE on the GOV.UK page.

Page 5 of this document recommends the use of VLC Player.
Some people have said that they could make it work with their Mac, but were having trouble with sound…  The answer… Under “System Settings” and then “Sound” select the drop down box to play to external sources (ClickShare).

The Ben Kinsella Trust
Ben was sixteen when he was stabbed to death in Islington in 2008.  Three men were later convicted of his murder, arising out of some “disrespect” that had nothing to do with Ben.  His parents and three sisters have worked tirelessly to help raise awareness amongst school children as to the dangers of carrying knives. 

Last Thursday I attended the Finsbury Library in Islington and was taken around the exhibition that hosts thousands of school children each year.  It is an extraordinary and deeply moving experience.  You begin in a room covered in happy family photos.  There is even a reproduction of the letter that he had written a few weeks before his death to the then PM, Gordon Brown, describing the problems he and his friends faced from violent crime on London streets.  Next comes a film, starting with the CCTV of his last moments alive as he staggered away from where he was stabbed, followed by the harrowing accounts of his parents, sisters and friends.  Then you move to the “consequences” room, with wall displays showing exactly the kind of information that you would want a schoolchild to absorb.  Finally, you move into a mocked up cell, where an actor brilliantly realises what it would be like to walk into a cell about to start a long sentence. 

I cannot do it justice and suggest you take a look at this.  All over the country there will be volunteer and charity organisations engaged in the kind of outreach work undertaken the Ben Kinsella Trust.  I urge you to do what you can to support them. 

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