Tuesday, 28 February 2012

Mini-Pupillage - Day 2 14/2/2012

Eddie called me a few hours after I got home from Day 1 and told me to meet him at Kingston Crown Court at nine the next morning:

"ABH. Probably racially aggravated. Might be some football involvement as well. And we've got a have-a-go-hero. And Kingston is 2 minutes from my house so I can get up at 8.45. Magic."

After the excitement of a Magistrate's Court Trial, I was worried that the Crown Court would appear positively dull in comparison.

I arrived at the Court at about 8.45, and made my way up to the advocates' robing room. I took a punt on the entry code, hoping it was the same as my last visit in June, and got lucky.

The robing room at Kingston is a marvellous place. So marvellous that when they filmed Silk* there a couple of years ago they showed the corridors from Kingston, the courts from Kingston, the lobby from Kingston, even the CPS room from Kingston - but the robing room from an entirely different court. Looked like Isleworth to me, but you can never be sure.

The highlight of Kingston robing room, the thing that really captures its essence, is probably the coffee. You see, they seem to have blagged a supply of coffee cups from Costa.

"Hooray!" you may think to yourself, "something perfectly palatable". If this is your reaction please go back and read the last paragraph again. CUPS from Costa; not Coffee. They have a coffee machine that makes the American GI slang "Mud" seem overly generous. This coffee could not even be saved by two sugars.You know you've hit the big time when a latte is made with UHT milk.

Anyhow, I seem to have digressed into the tribulations of a middle class existence.

Eddie turned up at about 9.30 muttering something about living too close and not having any bloody change. I took this as my cue to punish him for his tardiness by buying him a coffee, and then making him drink it.

The facts of the day's case were thus:

The defendant was a youngish black man who had been watching football in a local pub. At the final whistle he ventured outside and somehow got into an argument with a much older man of arabic descent. Harsh words were exchanged. At some point the defendant was said to have said something along the lines of "Get out of my face you fucking paki".

At this, a young white guy (definitely works in the city, almost certainly a public school boy, probably turns his collar up when feeling casual) decided to intervene by putting himself between the two men. Matters are complicated by the fact that the white guy and the black guy were both at the pub watching football, and supported opposing teams.

Unsurprisingly, things came to a head: the defendant attacked both men, witnesses say further racial terms were flung around (by the defendant and the arabic guy) and the white guy ended up with a broken nose and a black eye. The arabic guy got a black eye. The defendant went back in to the pub to finish his pint, whereupon HM Constabulary arrested him.

Eddie was prosecuting, and had a few issues to deal with: the CPS said that this was both a football related offence, and wanted him to present the case as such. They also believed it to be racially aggravated. Moreover, the defendant was unrepresented.

Unrepresented defendants can, apparently, be a bit tricky. Their lack of knowledge of the law is matched only by their vigour in trying to defend themselves, and court can become a fairly heated environment. Sadly, with the current public funding/legal aid regime, this will become only a more common occurrence, but that's a discussion for another day.

Eddie's first response was to try to convince the CPS that this was not a football related offence. Football related offences can be dealt with in very different ways, and the public policy considerations can be something of a minefield. Eddie was not, however, shying away from these considerations - instead he was just being realistic. The offence, in his opinion, had nothing at all to do with football - football just happened to be on telly somewhere nearby. The CPS took some convincing but they went with him in the end.

The racially aggravated issue was less contentious. There were a number of witnesses corroborating the events, and Eddie had no qualms in prosecuting in those terms.

The real fun, though, came when Eddie went to introduce himself to the witnesses. It's common for barristers to do this, and indeed they are required by the criminal procedure rules to try to calm nervous witnesses, and assist them with information on procedures, etc.

Half way through the chat, the young white witness (one of the complainants) said: "I'm pretty nervous about facing this guy in court, I heard you can give evidence from behind a screen. Can I do that?"

The other complainant thought this sounded like a fantastic idea, and asked for the same.

So, Eddie now had to make a Special Measures Application. Special Measures can be deployed in certain circumstances, for instance when a witness is in fear of being recognised by a defendant, or a colleage of the defendant in the public gallery. If these witnesses were genuinely in fear then a Special Measures Application was entirely appropriate.

So, before the trial started Eddie had to make an application. Contrary to popular opinion, a prosecutor's job in the English system is not purely to secure conviction. You're also an officer of the court and must assist, generally, in the administration of justice. Eddie spotted something.

As he was self-represented the defendant had the right to cross-examine witnesses on his own behalf. During cross-examination he'd be able to look straight at the witnesses. A screen would be useless.

Eddie wasn't entirely sure of the right approach. On the one hand he had to consider practicalities - the date had been fixed for some time, the witnesses had taken time off work, the defendant needed certainty as to his future.

On the other he needed to consider the quality of the trial - its fairness would be directly impacted by the quality of the evidence, and that quality would be affected by the fears of the witnesses, and thus Special Measures.

Eddie was well aware that in the magistrates's court they have a power to order a court appointed advocate - someone paid for by the court purely to conduct cross-examination. He was unaware of any such power in the crown court.

As it turns out, the judge was equally oblivious. Eddie decided to bite the bullet and explain the situation in full to the bench. After a bit more digging it was established that the defendant was unrepresented because he had a fairly dodgy solicitor who had taken his legal aid certificate, and not bothered to hire any counsel.

What would have been a very tricky legal conundrum turned into a simple revocation of legal aid, and an adjournment. Eddie's worries were for nothing.

In the end we were done by 11.30, Eddie's clerks had nothing for him to do that afternoon, and we all went home. Petrifyingly, under the prosecution fees regime, Eddie got paid almost nothing for the day's work. Such is life at the criminal bar.

*Silk is not an accurate representation of life at the criminal bar. Doesn't stop me absolutely loving it though.

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