Trial and error

The collapse of the high-profile trials of former royal butlers Paul Burrell and Harold Brown has put the spotlight once again on the operation of the Criminal Justice System in general.

Paula Rohan says a mood of conciliation might help address the system's shortcomings

For criminal defence solicitors with funding worries and justice reforms hanging over their heads this summer, it was the last straw when Home Office minister Lord Falconer suggested publicly that they were stringing cases out in the hope that they might slip through the system.

Lord Falconer hit out after the government estimated that collapsed trials in magistrates' courts alone cost the taxpayer 41 million each year.

Collapsed cases come under two categories - 'cracked' trials, where a case is concluded without a court hearing; and ineffective trials, where a hearing is cancelled on the day it was scheduled to go ahead and has to be delayed to a later date.

These inevitably waste time and money and cause distress to victims and witnesses.

There is no doubt that a big problem exists; in the last month alone, the public coffers suffered an estimated 2 million battering over the case against former royal butler Paul Burrell, which folded after the Queen stepped in with last-minute evidence, and the collapse last week of a second royal butler trial involving Harold Brown.

Then there was the furore over the first assault trial of footballers Lee Bowyer and Jonathan Woodgate last year, which was terminated after the Sunday Mirror printed an inter-view with the victim's father.

The newspaper was fined 75,000 for contempt and at a second trial Mr Bowyer was cleared while Woodgate was convicted of affray.

However, most cases that break down on the steps of the courtroom or in front of the judge are not so sensational.

Official statistics for July to September 2002 showed that 26% of ineffective trials were caused by the absence of the prosecution witness, 20% by lack of court time, 12% by defendant non-attendance, 7% by absence of the defence witness, and 5% by the defence not being ready.

Just over a third (35%) of cracked trials were caused by the prosecution offering no evidence, 35% by a late change of plea by the defendant, and the remaining 30% by some form of compromise on the day of trial.

'The statistics speak for themselves,' says Danny Simpson, criminal law partner at Sheffield firm Howells.

'The biggest cause of trials being ineffective was the absence of the prosecution witness.

The biggest cause of cracked trials was the prosecution changing their minds - and pursuing prosecutions which they have ultimately to concede are hopeless.'

The Crown Prosecution Service (CPS) takes a different view.

'Cases are kept under continuous review and during the lifetime of a case the police can present fresh evidence to the CPS which has to be taken into account,' a spokeswoman says.

Mr Simpson is not alone in disputing that the blame should be laid at defence solicitors' door.

Speaking at the Criminal Law Solicitors Association (CLSA) annual conference last month, Southwark Crown Court judge George Bathurst-Norman criticised the last-minute disclosure of documents by the prosecution.

He said: 'I can't help thinking we are in an Alice in Wonderland situation where the defence is blamed for what is really the Crown's fault.'

Defence solicitors argue that collapsed trials can be immensely annoying for both them and the defendant.

Rob Rode, partner at Leeds firm McCormicks, recently saw a trial scheduled in a domestic violence case adjourned because the court was double-booked - after he had spent three months preparing for it.

A full trial is now likely to be delayed until the new year.

'Our client has said he is not guilty from day one and wanted his day in court, but now he will remain on bail with no verdict of his guilt or innocence,' Mr Rode says.

'It is very frustrating because we have prepared and done our work, and now this is going to cost the government a lot of money because when the trial is re-listed, we are going to have to refresh our memories and prepare all over again.'

Whatever the cost to the system, defence solicitors and their clients will always have a different view of cracked trials as opposed to ineffective trials, where they and their clients are left in a kind of legal purgatory until a new date is set.

CLSA director Rodney Warren remembers a high-profile trial he once worked on which collapsed at the Old Bailey.

'There was lots of evidence to suggest that the client was definitely not guilty and the trial collapsed before the prosecution had a chance to cross-examine any witnesses because the judge ordered the jury to deliver a not-guilty verdict,' he recalls.

'The client was delighted and as far as we were concerned we had done a good job - the main thing is always that justice is done.'

For both cracked and ineffective trials, a major cause is witnesses.

The CPS spokeswoman admits that judge-directed acquittals often occur when, under cross-examination, witnesses do not come up to proof.

'Sometimes it can appear that their evidence is very strong on paper but falls down under cross-examination or their evidence changes,' she says.

'We don't interview them, the police do, and we don't know what the defence will ask - we can only try and anticipate it.'

But last year, 22% of Crown Court trials that failed did so because a prosecution witness failed to show up at all, prompting the Home Office to act on a range of measures for vulnerable or intimidated witnesses, including widespread provision for TV-link suites to make witnesses feel more comfortable about testifying.

Chelmsford Crown Court set up a pilot investigating the use of communications methods such as text messaging to stay in touch with witnesses.

However, Law Society criminal law policy adviser Sophie Thomas says the solution to the problem could be much simpler.

'A lot of the problem is down to prosecution witnesses not attending or not being ready, but this is less the case with defence witnesses because you find that the defence solicitors tend to be nicer,' she says.

'They do a bit more hand holding, encouraging the witness to attend, asking if they have sorted out childcare and warning them that they might be there for three hours or more, so they should bring a book.'

In fact, despite Lord Falconer's much-publicised views, the government's concern has manifested itself more in changes aimed at the CPS and the police than at the defence.

The Attorney-General, Lord Goldsmith QC, set up five charging pilots earlier this year - where responsibility for charging was shifted from the police to the CPS - which the government plans to roll out through its Criminal Justice Bill, published last month.

The pilots appear to have gone well, leading to a rise in convictions, a drop in discontinuances and more defendants pleading guilty at their first court hearing.

However, Franklin Sinclair, partner at national criminal law specialist firm Tuckers, maintains that many cracked trials could be prevented if charges were fully addressed at pre-trial hearings.

He explains: 'The CPS very rarely offers alternative charges at that stage.

Nothing further happens until trial date, then miraculously the CPS offers a lesser charge and we agree.

'We have a huge amount of trials where this happens on the day of the trial.

There is no incentive in the system for all parties to sort this out.

However, so much has been tried and nothing works.

The best thing is closer case management by judges and magistrates - they should actually push the CPS to be prepared and state at the pre-trial whether there can be an alternative charge.

If the CPS says no and later offers one on the day of trial, then it should have to pay costs.'

Mr Sinclair says much of the problem is caused by the CPS talking to police and witnesses and instructing agents or counsel - who often only get the file the night before - on the actual day of the trial.

Again, the CPS takes a different view on this issue.

'Defendants do change their pleas on the day of trial, or will offer pleas to some charges and not others which may be acceptable to the prosecution, provided the prosecutor thinks it allows the court to pass a sentence which matches the seriousness of the offending,' the spokeswoman says.

'Where the CPS needs to instruct counsel for a case, it will do so as soon as is necessary but there can be occasions, for example, where counsel is committed to a trial which lasts longer than anticipated, when the brief has to be returned.'

Ultimately, what defence solicitors would really like to see is an end to the accusations that they are to blame for all the failings in the system.

Mr Warren insists there is no motive for defence solicitors to string trials out.

'Clearly, we know that there are issues to be addressed about improving the system and we know already that attacks on defence lawyers are not productive,' he says.

'The constructive way of working this out is to get an understanding of how the issues come about and then all the criminal justice agencies - including the defence - getting together to work out how to improve matters.'