Friday, 25 January 2019

A criminal waste of time and money..

It’s over two decades since I got to my feet in a criminal court of any description and, as a firm, we don’t deal at all with that area of work. 

So, whilst I'm pulling my hair out daily at the inadequacies of the civil court system, my understanding of the lamentable state of affairs on the other side of the fence comes from reading the depressing reports from many others (including an anonymous caped rabbit) [See footnote]

This week, however, came a chance to witness at first hand – well, via one of my team – whether or not it’s really as bad as they say it is…

Yes, it is.

What are we doing mucking about in the magistrates, first of all?  The answer is that we are running a road traffic accident claim for a cyclist who says that he was forced to leap from his (expensive) conveyance seconds before a large truck flattened the two of them.

Before he had even instructed us last year, our lad had received emails from the police assuring him that dashcam footage had been recovered from the owner of an oncoming vehicle and this showed that the incident occurred exactly as our client alleged.  We all felt good about that and the prospects of a guilty plea from the truck driver.

Sure enough, charges of driving without due care and attention, failing to stop and failing to report followed.  There was some debate about the failure to report where the police had stopped him a quarter of a mile up the road anyway.  He also had some argument about failing to stop but the boys in blue really couldn’t have been more confident about the due care.

Our client was told to ask us to get in touch with them for a copy of the dashcam footage.  We did.  We were then told to apply elsewhere – to ‘the decision makers’. Hold that thought.  Then we were told we couldn’t have it until after the prosecution was concluded.

In the meantime, remarkably it seemed, the truck driver’s insurers declined to admit liability.

A fortnight before Christmas, our client was notified that he would be required at Exeter Magistrates on Wednesday of this week for a trial, starting at 11:30.  After some deliberation, we decided that a watching brief might be a good idea.

Meanwhile, the hearing was brought forward to 10:00.  Knowing what I do from my daily interaction with the Twittersphere, I wondered if that was a good idea.

Well, just for the record, on the day there were of course half a dozen customers in the cells that needed to be dealt with before our trial.  The morning and early afternoon passed, punctuated only by brief trips to the court room to be told to come back in an hour or so. 

By mid-afternoon, there was talk of a possible adjournment and then at 15:00 the prosecutor announced that following discussions the two minor charges would be dropped and the driver was going to plead guilty to the due care and attention.


Well…at some point the defendant’s solicitor had caught mention of some dashcam footage and remarked that this had not been seen.  The video evidence was shown to the defendant who promptly put his hands up and explained that he simply hadn’t seen our client or his bicycle.

Having regard to the size of the vehicle he was driving, the court administered seven penalty points and a bill for nearly £1,500 in fine, costs, compensation and victim surcharge. One would think that an admission of liability in the civil claim will now follow, promptly or otherwise.

I struggle to understand how it is that a simple case like this can reach five hours after the appointed time before somebody – anybody – looks up and says, “this dashcam footage - shall we have a butcher’s at it while we’re waiting?”.

My assistant overheard the conversation after lunch when the (Romanian) defendant’s solicitor told the translator that the CPS had dashcam footage but he hadn’t yet seen it.  He had also explained to the CPS, in response to the suggestion of an adjournment, that they were paying for the translator to be there and would have to meet that expense again if the case wasn’t dealt with today.

Whatever the explanation, there is a short piece of film from 9 months ago that, once shown to the defendant, immediately proved to him that he had indeed fallen into error on that day.

This fits with what the police told our client and us from the outset.  If matters had proceeded then as we were led to believe, we would have been in a position to show that evidence to the insurers who, if they were paying the bill for representation, would probably have made known the hopelessness of the defence. 

Why is it that from the point where the file moves from police to prosecutor and then until the brink of an adjournment nobody but the prosecution representatives get to see the simple damning evidence?

Why wasn’t this brief footage simply given to the defendant himself from the outset?  He may not be able to read English but visual images need no translation? 

The result, apart from a due care conviction on a guilty plea (oh, well done indeed the CPS!) is a wasted day with attendant expenses and losses for the defendant and three witnesses.

Also, there’s the wasted cost to the public purse of a prosecuting solicitor, an interpreter and precious court resource.  You and I will pay for that.

Presumably the cost of the defence solicitor will fall to insurers who will use that and similar cases as part of the excuse for putting up our next motor premium.

Yes, I lost an assistant for a day and I gained very little for her remuneration and travel expenses but I had already accepted that that would be irrecoverable whatever the outcome.  Still, it could have been spared.

What a calamitous waste of everybody’s time and money just because there is nobody with the wit and motivation to play an incredibly easy ball.

Footnote: For anyone who doesn’t recognise it, the reference is to The Secret Barrister (@BarristerSecret

Friday, 11 January 2019

Not much COP

On the foulest of mornings at the start of last November, counsel set off from Cardiff at hideous o’clock bound for Telford and a dispute resolution hearing in a deputyship application in the Court of Protection (COP).

Don’t ask me why this event took place in Telford.  It was marginally less inconvenient for our septuagenarian client who had to travel from Gloucester.  The only thing that doesn’t call for much explanation is the fact that there was no sortie from this office in the darkness, wind and (copious) rain.

It all seemed worthwhile.  Counsel – and others involved – did an admirable job of achieving agreement on all matters except the costs which in turn all agreed to leave open for further argument.  Meanwhile, a fairly acrimonious dispute between three sisters about the welfare of their ageing mother took a big step towards conclusion.

Counsel was required to perfect, agree with our opponents and email to the court a very long draft order that same day.

After waiting (perhaps too) patiently five weeks for the court to print the order that everyone including the judge had agreed and apply a seal to it, we wrote on 14 December to ask what had happened to it.  We had a nice email telling us that it had been referred to the judge on 9 November and they had received no reply.

“However, looking at your email it was already stated that the order had been approved by the DJ…”

There followed the reassurance that the court had “moved the order to urgent tops” with the hope that they would “draw (??) and send the order out by no later than..” 21 December.

Naturally we chased again at the beginning of this week.  Then comes the explanation that, apparently, they are not allowed to “emboss” an order in Birmingham.  It has to go to London for this complex procedure to be performed.

I suppose I should be thankful that we are actually getting communications direct from the court at the moment.  Since this case was transferred to the Midlands Regional Hub the court office has consistently ignored the fact and reminders that we went on record at the start of proceedings (the London office got that right too) and insisted on sending notices by post to our client.

On the first occasion, in July, the notice was unseen for a period of three weeks because our client was away from home.  The upshot was that we had a week’s notice of the first hearing and yet had to go to the expense of a formal application to adjourn to the beginning of October.  That hearing was later adjourned at a week’s notice for we don’t know what reason.

It all creates unnecessary expense and worry for the children of the patient who themselves are of advancing years and prefer not to have to travel half way up and down the country at short notice.  There’s also the delay of many months before the financial affairs of the patient can be dealt with.  Even now we don’t have the essential deputyship order two months after the agreed draft was filed by email ready to print.

Far and away the greatest share of responsibility for the delay, expense and frustration rests with The Court Service.  I am sure that at Birmingham, as elsewhere, there are well-meaning and capable people – good people – who are doing their best and I intend no criticism of them for that.

I do intend criticism of the MOJ, and the government, for emasculating a service which in consequence is not providing the protection it should to the increasing numbers of our ageing population.