Monday Message 26.09.16
Francis FitzGibbon QC
Before turning to matters of current interest, here are few outline thoughts about the bigger picture. I’d like to start a conversation within the profession and outside it about what the criminal process is for.
I think that society asks too much at present of our courts, judges and criminal justice professionals, including the police and the prisons. The criminal courts have two real tasks: to find out if the state can prove that a person it accuses of a crime is guilty, and if so to impose the right penalty. Victims don’t receive therapy from the process. Better to make more use of restorative justice, as Theresa May said to the Police Federation this year; ‘used appropriately, restorative justice can have real benefits for victims’.
The trial is not designed to undertake a 360° inquiry into ‘what really happened’. Its strength is the recognition that the truth can be elusive. We aim to achieve a just verdict, no more and no less, from what can be ascertained within an adversarial process.
We need greater public recognition of the proper limits on what criminal courts can and should do, and greater appreciation of the value of what they actually do within those limits. Let’s keep the conversation going.
The Koestler Trust & Exhibition
Arthur Koestler, best known for his classic, autobiographical prison novel Darkness at Noon (1940), founded the Trust in 1962 to promote art by ex-offenders in prisons, secure hospitals, other places of detention, and on the outside. The Trust selects the best work – this year from over 6000 entries – for an annual exhibition, which is at the Royal Festival Hall on the South Bank in London until 13 November. The exhibition is aptly entitled We Are All Human. The range and sheer quality of the work is a testament to the latent creativity that can be found in the darkest places, which can give purpose and meaning to chaotic and disordered lives. As a method of rehabilitation by finding the best in offenders, the Trust’s work takes some beating. Don’t go to the exhibition to see a well-meaning piece of charity – go for art of the highest quality that may alter your view of people behind bars. Here’s a flavour
Several people have contacted me, to report serious and unforced errors in the disclosure of unused material by the prosecution. These have despite defence statements have unambiguously flagged up issues, and beyond, when continuing requests have been made.
Disclosure schedules are sometimes incomplete and there are worries about the review process and whether the instructed advocate is getting the material.
Of course, there can be occasional slip-ups and when discovered they should be correctable. I’d like to know from members whether there is a sense of a more general problem here, so we can find ways of putting it right. Please give Aaron or me details (as anonymised and confidential as you wish).
HHJ Anderson (Harrow Crown Court) has prepared this paper in response to a request by the Senior Presiding Judge for information about the PTPH and the DCS. He has asked for it to be circulated to the profession, and for comments to come back to him by 10 October.
He calls for a redesign of the form, re-briefing of all interested parties, more staff to work as Case Progression Officers, and strict compliance with the rules. He summarises thus:
A final observation regards the state of readiness of digital cases when listed for trial.
The position, shortly, is that currently we are seeing very little change from pre
One would have hoped for parties appearing to be far better prepared, with
effective communications to have been taking place in the run up to trial.
That is not our experience.
1. A problem arose in a case where the defence statement was served on the Court but by an oversight no one pressed the ‘send to CPS’ button. CPS policy is that ‘good service’ is only effected by pressing the button, so that no extensions for time to serve should be granted if it is not pressed. Just uploading onto the DCS doesn’t count, without either notifying the CPS separately or by pressing the ‘send to CPS’ button.
2. There has been a problem with slow delivery of emails on CJSM. I am informed that the cause was heavy traffic from a local authority and the technicians should have dealt with it when you read this. Most comms in our world are now over the DCS so hopefully we can rely much less on CJSM.
CBA Winter Conference 2016
Saturday 3 December, with the customary stellar line-up of speakers including Professor Ormerod and Dr Matthew Dyson, the academic powerhouse behind the Jogee appeal, and Rudi Fortson QC on psychoactive substances.
This has been a miserable period. Another of our much-admired members, Stephen Field of 1 Pump Court, has passed away. Our sympathy and condolences to his family and many friends.
The Memorial Service for Kate Mallison will take place on Thursday 10th November at 6pm, Temple Church. Following the service there will a reception at Daly’s Wine Bar, 210 Strand, London WC2R 1AP. RSVP to Lee Cook at [email protected]