Friday, June 03, 2005

Foolish Applications

I dragged myself down to a Crown Court recently to be present for the final trial readiness hearing before the trial starts next week. I wanted to be present for the hearing along with Junior Counsel to ensure that everything was running fine and that there would be no hiccups when the trial started. I had some concerns not so much about my case but whether the other Co-defendant's representatives were ready for trial.

I had experienced trouble trying to get another case listed for mention in the Crown Court I attended at because of the particular multi handed case that was in for a trial readiness hearing was expected to take up some much of the cell space and Court time in the Crown Court. The case was listed for 10.30 am and we did not get called on until 3.30 pm - now that was a waste of time, and a pretty expensive waste of public funds. There were a total of 21 people including barristers, solicitors, solicitors reps, CPS reps, and Police Officers all kicking around from 10.00 am until 5.00 pm.

Whilst waiting for my case to be called on I sat and observed one of the 'local' Judges verbally berate one barrister for requesting disclosure in opposing a bad character application. The Crown were seeking to adduce evidence of bad character and the solicitors were opposing the application, but before the application could really be dealt with the solicitors were trying to get disclosure of the information the Crown used to base their bad character application on. The information being asked for was a set of statements and case papers for a trial where the Solicitors represented the Defendant who in a previous case the Crown ultimately offered no evidence against because a Co-defendant pleaded guilty. If you are confused by all of this do not worry - everyone these days seems confused with bad character! Back to the point. Everytime the barrister asked the Court to order to Crown to provide the Solicitors with a copy of the statements for the previous case the Judge would say: "Miss X, why are you asking for the statements, your solicitors will already have them as they acted for the Defendant in the previous case?" The answer that was given was always, "Well, I am instructed that they do not have them". This hearing went round and round in circles and eventually the Judge lost his calm composure and told the barrister that the Solicitors had been wasting his time with the hearing and that they should now explain why they should not foot the bill for the costs of the hearing. I sat watching this hearing and could not work out why the barrister had not been told to, or had thought to, phone the Solicitors part was through the hearing and get an explanation why they did not have the papers they were asking for! At least if there was an explanation why the papers had not been archived it would have stopped the Judge coming out with the phrase: "Miss X, why are you asking for the statements, your solicitors will already have them as they acted for the Defendant in the previous case?"

The second foolish application I saw that day was in fact one made whilst my case was being dealt with. Junior Counsel for a Co-defendant stood up and made an application to break a trial fixture that had been fixed for about 6 months ago. The reason for making the application was because Leading Counsel in the case had a problem with their diary and were no longer able to represent the Co-defendant at his trial, so he had sent along his Junior to make an application to break the fixture so that he could be paid for the time he had spent on the case already. Apparently under the graduated fee system counsel can only claim for preparation work in a case that they do not ultimately deal with if an application to break the trial date is made. This information was made blatantly clear by the unfortunate barrister who had to make the application. The Judge stopped the barrister making the application and told her in no uncertain terms that he would report her to the Bar Council for making an application that she knew had no merit if she continued to make the application - she stopped immediately.


Anonymous said...

"Miss X, why are you asking for the statements, your solicitors will already have them as they acted for the Defendant in the previous case?"

shirley ! miss x was seeking to discover if the prosecution actually had possesion of the paperwork to prove 'bad character' ?

if the prosecution did not have said paperwork there's no way the prosecution can prove evidence of 'bad character' to the court.

is that not a TKO, on this point alone, for the defence ?

Gavin said...

I had no involvement in this case but from what I understood the Crown did have a copy of the papers, just not at Court, and this was a preliminary hearing to deal with disclosure before the proper bad character application was made. The Judge seemed to lose his rag because he thought that the Solicitors were asking for papers that already had.

The precise law in relation to bad character is currently in a state of flux. The Crown often make applications for bad character to be adduced relying on some old case summary without bothering to dig out the case papers from which the conviction relates to. At present there are no concrete guidelines that say the Crown has to hand over detailed copies of files/information from which they base their evidence of bad character. There has been some recent movement in the Court of Appeal on this issue of disclosure in bad character applications, but I have yet to see the case nmake a difference.

The stupid thing about bad character is that in certain circumstances the Crown can ask for evidence of bad character to be adduced as evidence when that bad character evidence is in fact an unproven allegation against a defendant!

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