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

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