He was apparently an ‘essential prosecution witness’ – if he didn’t turn up, the case would be abandoned. He received phone calls from a sympathetic lady at the witness care unit to assess his needs for the day – did he require transport, special facilities in order to enter the building, or contact made with any other support agency in order to make his appearance in court less ‘stressful’ for him.
Since his ‘evidence’ was that he had manfully snored his way through the entire incident, heard nothing, saw nothing, and was totally unaware that he was the owner of a garden wall which had received a glancing blow from a motor car during the night – he was slightly bemused that he even needed to follow up his statement by putting in an appearance. His not to argue. He would turn up.
This call was followed up by several chatty e-mails – advising him of the date of the hearing; checking whether his needs had changed in the meantime; and reassuring him that someone would meet him at court and take him through the whole process of saying he had heard nothing and seen nothing…there was even a follow up call to check that he had managed to access the e-mail…
We duly turned up on the day, and were met by a charming lady who took Mr G on a guided tour of the court room, showed him where he would have to stand to tell the full majesty of the law that he had seen nothing and heard nothing…warned him that apparently normal looking folk would shortly reappear wearing horsehair wigs and Hogwarts outfits; made sure he knew where the toilets were in case the proceedings had a fatal effect on his bladder, and that he mustn’t be embarrassed to ask the judge if he could leave the room to go there, the judge would understand.
Ms Raccoon was getting a fit of the giggles by this time, so we declined her offer to sit with us, and keep Mr G calm…but we settled for the mugs of hot chocolate on a nice little tray that she brought ‘cos its quite cold outside’. Blimey! I can see Crown Court turning into a popular pensioner’s day out. Back and forth she came, checking that we were still there, that Mr G’s legendary strong bladder hadn’t been overcome by anxiety and stress, and apologising for the fact that the defendant hadn’t ‘yet’ put in an appearance. (She never did).
The prosecution barrister came to see us, and went through the entire check list of things that could be worrying the unflappable Mr G yet again. She (who I swear was Clarissa Dickson Wright’s doppelgänger) looked slightly alarmed to find us by this time closeted in a small side room with two very large, very burly, senior policemen in full dress uniform. Ooh, er, the prosecution witnesses hobnobbing….that would be because we were neighbours, they had seen the incident as they walked home after a night out, and being policemen had the good sense to bring a packet of hobnobs with them – they knew how long we would be there.
Hogwarts QC, for it was she, informed us that the defendant was intending to plead ‘not guilty’, (drink driving amongst several other things) but hadn’t yet been ‘found’, definitely not in the building. She ran through Mr G’s ‘evidence’ (that was a zero sum exercise) and that of our neighbours, noting that they had both had to obtain cover for their normal duties in order to give evidence, and that she had also arranged for an expert witness to attend – the lady concerned was well ‘over the limit’ but claimed that she had downed an immense amount of alcohol in the few minutes between parking her car and the ‘on duty’ police being called and finding her fast asleep at the wheel with an empty glass in her hand…
She made us promise not to discuss the case amongst ourselves. Why would we? All present were far more interested in discussing Mr Rossi’s progression round the MotoGP track in ever decreasing circles…well, the other three were.
Ms Raccoon did pipe up at that point, though not a witness, to ask how or at what point Mr G should say that actually the insurance company had paid for the damage to the wall? ‘Your insurance company’? ‘Er, No, her insurance company – I sent them photographs of the wall showing the distinctive blue paint on the wall, and photographs of the front of her car showing them the distinctive red brick still attached to her damaged car’.
Hogwarts QC clasped her hands, stared at the floor, looked up to the ceiling, and asked Mrs Witness Care to fetch more hot chocolate. Another hour went by, another ‘potty check’ for Mr G – Mrs Witness Care was definitely under the impression that anyone over the age of 50 required the toilet every half hour, she was obsessed with his bladder.
This time they managed to make contact with the defendant, ‘at home’ – something we could all have done with being. She had, on being informed that her insurance company had accepted liability, changed her plea to guilty. There would be another court hearing date. ‘Mrs Witness Care’ roared back into life with a full résumé of what that would entail, and promised to be there to hold our hand and anything else that Mr G required holding…
Four and a half wasted hours, waited on hand and foot by Witness Care and Prosecuting Counsel. Endless e-mails from the arresting officer, further follow up e-mails from the police telling us that she had been banned from driving.
So I’m a tad bemused as to why Alison Saunders thinks that the courts could ‘better assist victims and witnesses called to court to give evidence in criminal trials’. She went on to say that barristers should be:
introducing ourselves to victims and witnesses, explaining how the process works, encouraging them to re-read their witness statement and ensuring they feel able to ask for questions to be repeated or to ask for a break.
Seems to me that is already happening – with a vengeance. The Witness Care Unit is already doing all that and more. (The hot chocolate was excellent). so what is causing the controversy within these new guidelines? The answer to that is deeply buried in the consultation document.
It is the merest hint of a suggestion that possibly, tentatively, a barrister might avoid a ‘vulnerable witness’ becoming stressed or upset by something being ‘sprung on him’ by the defence…
You know how it is; you’ve gone through months being #believed that you were abused by the matron for six months, and then suddenly the defence spring on you that actually she only worked there for three weeks – kind of takes the wind out of your sails and leaves you tense and upset, and well, disadvantaged…
So the suggestion is that the prosecution barrister could have a little chat with you beforehand, and warn you as to the likely tactic of the defence. Not specifics of course, for that would be ‘coaching’, but just in general terms.
‘You might want to refresh your mind as to the dates that this awful, horrible, dreadful, incident that we hardly like to mention in case it upsets you, actually occurred’.
‘Any particular date you want me to mention, Guv?’
‘Oh, good heavens above, no, I can’t tell you specific dates, I’m not permitted to do so, just, er, refresh your mind, re-read your statement’.
And so, fortified by much hot chocolate, duly potty-breaked every half hour, cosseted from the moment he entered the building, our vulnerable victim is led to his comfy seat behind a screen, and the defence barrister, Skinny-Hogwarts QC, is permitted to gently question him.
‘And was this abuse a daily occurrence, Mr Victim’.
‘Oh yes Guv, each and every day, ‘orrible it were’.
‘So Christmas Day was no exception?’ says Skinny-Hogwarts QC clutching in his hand a copy of Mrs Matron’s employment record – three weeks the previous August. ‘I put it to you, Sir, that you are
lying through your back teethsadly confused owing to the trauma you have suffered.
‘Ere, Guv, my Brief…’
His Honour Mr Justice Took-Itstime, intervenes at this point ‘Do you mean the prosecuting counsel, young man’?
‘Yeah, ‘im over there, my Brief, the lying git, ‘e said as how this basta*d weren’t permitted to ask me specific dates…’e told me that’.
Mr Justice Took-Itstime calls both counsel to the bench. ‘Is this true that you told Mr Victim that the defence weren’t allowed to question him on specific dates?’
‘Of course it isn’t, I couldn’t engage in coaching a witness and therefore I couldn’t tell him that the defence had disclosed to me Mrs Matron’s employment history – I said I couldn’t give him specific dates’.
‘Record the conversation, did you’ mutters Skinny-Hogwarts QC, sarcastically.
‘Course not, not on court premises, not allowed’.
‘Any witnesses that you didn’t mislead the witness, Mr CPS Stalwart QC?’ asks His Honour. ‘Or is it just your word against his’?
Now Alison Saunders says this won’t happen. She says every Crown Court in the country will be flooded with CPS paralegals, with nothing better to do than to stand witness to every conversation between witness and prosecuting counsel, make notes of it even. Including those situations where there are 7, 8, 9 different ‘victims’ and even in those vast Liverpool and Manchester courtrooms where there are 10 or 15 different cases running at the same time.
With the prosecution and defence disclosing much more to each other than ever before, it is only right that victims and witnesses are now included, to an appropriate level, in this approach. This might be a logistical challenge in the larger and more complex cases but by working efficiently together and with sensible timetabling of witnesses, this is achievable.
This is the same CPS that fields one case worker to cover four different cases at opposite sides of the building; this is the same CPS that run the Sisyphean digital case management system that ensures, on the rare occasion that it will fire up, that some barristers hired at the last moment when the CPS realise they are hopelessly behind, are expected to cover 8 different cases with a multitude of witnesses, none of which they have had any time to read up on until that very morning.
Barristers ‘should never speak to witnesses unless a CPS official is also present’.
The very idea that any barrister should waste those rare occasions when they can actually get hold of a real live CPS official, in the same building, at the same time as them, on witnessing a conversation with Mr Victim, is risible.
In real life, they will be far too busy using the opportunity to track down the reams of evidence missing from their last case, or prising a decision out of the hapless CPS as to whether the Crown Prosecutor is prepared to drop some charges in return for a ‘Guilty’ plea on their next case.
And in the absence of a CPS witness to this ‘non-coaching’? Abandoning the convention that prosecuting counsel would never disclose factual matters to Mr Victim could easily compromise trials – and leave prosecuting barristers at risk of ending up as witnesses themselves.
It is a recipe for pandemonium.