“Please Be Quiet” … The MOJ / ALS / Interpreters Saga!

This is the unabridged version of John Storer's article that appeared here on The Justice Gap.

I live and work in Boston, Lincolnshire … a fairly small market town, some 125 miles due north of London.  A town that has seen dramatic changes in the last ten years.  In 2001, the population was around 35,000. It is now around the 45,000 mark. The massive increase in population is almost exclusively down to the influx of migrant workers that have come here from other EU countries to work on the land or in the many food factories that provide most of the work in this part of the world.

Initially, the influx came from Portugal but once Poland, Lithuania and Latvia joined the EU, the whole nature of the town started to change. Shops and other businesses started up, and soon our eastern European friends were a major contribution to the financial well-being of the town and surrounding areas.

Of course, as in any society, some of our new residents were not as well-behaved as others! Pretty soon, we started to see some unpronounceable names on the court lists and interpreters became an important part of my daily life as a criminal defence lawyer. Today, some 20%-25% of our client base is non-English speaking and pretty much every court sitting has at least three interpreters present.

Over the years, we have got to know and, much more importantly, trust the interpreters we come across every day.  They play a vital role in the proper administration of justice – not just for the defence but for the police and prosecution also.  Many victims of crime, and many witnesses to crime, do not have a sufficient grasp of English to make a complaint of a crime, or give a full account of what they have seen.

Interpreters are involved at the outset – from taking complaints and witness statements, through to acting as translators during interviews with suspects, and then to assisting the court in making sure the defendant or witness understands and is understood.  They assist both prosecution and defence in statement taking and statement translation. It would be no exaggeration to say that, without them, the entire criminal justice system in our area would be in deep trouble.

So it was with some misgivings that I read a press release (ignored by most at the time) of the intention of the Ministry of Justice to contract out interpreting and translation requirements across the criminal justice network.  I started to pick up gossip from the interpreters I know that they were concerned also.

My concerns increased when it was announced that the contract had been awarded and that pretty much every interpreter I knew was refusing to sign up.  The warning signs were there at the outset; the contract was originally due to start in October last year but for some unannounced reason was postponed to 2012.

We had experienced problems before – Lincolnshire Police had entered into a contract several years ago with a company called CINTRA to provide interpreters at police stations.  There were “teething problems” at first; many of the initial interpreters sent were simply not up to the job.  This caused extra public expense, because defence solicitors had to employ their own interpreters to accompany them to the police station and the cost was borne directly by the Legal Services Commission because all police station advice is funded by them. 

However, over time the “wheat” was sorted from the “chaff” – the poor ones dropped out and we were seeing interpreters of quality and, more importantly perhaps, a working knowledge of the criminal justice system.  We started to have enough trust in them that the need for our own translators diminished to the point that we trusted the CINTRA interpreters entirely and began using them for defence work as well.

The figures are quite astonishing – in 2011, the police made 2,200 requests for interpreters, the overwhelming majority of them being for Russian, Polish and Lithuanian speakers. Perhaps I should mention here that many Latvians, although the country has its own language, have Russian as their first language

It was on 1^st February that the Ministry of Justice announced that the contract had been given to a company called Applied Language Solutions (ALS), a company formed in 2003 with (it has to be said) considerable experience worldwide of supplying such services. A quick look at their website showed that, pretty much straight after the award of the contract, the company had been bought by Capita Group PLC – the UK’s largest provider of “business process outsourcing”!

So, on the face of it, the contract was in good hands. However, it soon became clear that many of the interpreters we knew and trusted had not signed up to work for ALS. This was because the “contract for services” meant that many of them would be simply unable to work for the money being offered for their services. Previously, they had been paid for a minimum of 3 hours’ work with travelling and expenses. Not overly generous when one considers that would probably be their only job of the day with no guarantee of work the following day or days.  The new contract is for an hour minimum with usually no travelling.

Anthony Walker, a spokesman for ALS is quoted as saying “The rates are fixed and non-negotiable for everyone. This rate of pay is £22 an hour for a Tier 1 linguist and £20 per hour for a Tier 2 linguist.

“These two categories being the ones that will be required to deliver the great bulk of all the work done by linguists in criminal justice settings. A very small portion of criminal justice work will fall in to the Tier 3 category at £16.”

There are few of us who can afford to work full-time with the possibility of only earning £22 in a day, let alone £16!

The contract, worth £300M over five years, is supposed to save the nation £18M a year. Quite how this adds up, when the MoJ have previously said they already spend £60M a year on interpreters / translators, is beyond me.  What is clear, however, is that Capita obviously thought this was a company well worth snapping up and clearly saw huge profits.

Anyway, there I was at Boston Magistrates Court on the second or third day of the new system. I was court duty solicitor, and was told there was a young Rumanian lad in custody. He’d been charged with (and admitted when interviewed by the police) a very large shop theft. He’d never been in court before.  I was told an interpreter had been booked for 9.30am.

By 11.00am, and no interpreter had arrived, I started to make enquiries. The police confirmed they had booked one, but then rang me back to tell me they had been told by ALS that “no one had picked up the job”.  I could not even explain to my client (who had not had the benefit of legal advice whilst at the police station – his own choosing, I hasten to add) why there was a delay.

Several phone calls later, I was told an interpreter would be with me for 1.00pm. She arrived at 1.35pm, having driven many miles from another county.  I was pleased to see she was nationally-registered.

Let me explain, or let me let the National Register of Public Service Interpreters explain;

“The National Register of Public Service Interpreters (NRPSI) maintains a register of professional, qualified and accountable public service interpreters. Using the National Register to find an interpreter ensures that you not only employ a qualified practitioner but that the interpreter can be held accountable should their conduct or competence fall below the high standards expected of a Registered Public Service Interpreter”

So I was sure she would know what she was doing. And she did.  We dealt with the case very swiftly after her arrival.  She then began to tell me some real horror stories about the quality of some of her “colleagues” who had joined ALS and who held no qualifications at all.  For instance, she told me that she had heard a custody sergeant refuse a detainee bail because he was “a flight risk”. Anyone in the criminal justice system would know that this meant he might abscond and fail to surrender to his bail at court. However, this was translated by the “interpreter” into “You must stay here to stop you catching a plane”

Still, I was hopeful. Here was an interpreter who knew her stuff. Perhaps there would be others like her?  I have not yet found out; she is the only interpreter who has turned up for any of my cases.  So far, I am personally aware of sixteen cases where the interpreter has simply failed to attend.  Many of these have been for defendants in custody; one was charged with murder!

ALS have confirmed that “some” cases have been cancelled because the firm was unable to provide interpreters.

"Unfortunately that has been true in some cases which is something that we are working extremely hard to resolve," an ALS spokesperson said. Actually, Mr or Ms “ALS spokesperson”, this has been true in the majority of cases in our area and it is clear that the same thing has happened in courts up and down the country.

Another (or possibly the same) spokesperson acknowledged that there have been circumstances where it had not been possible to fulfill a booking at short notice.

She added: ‘Prior to rollout there was limited accurate management information available regarding the expected daily volumes of short notice interpreter requests.

Hello!  You’ve just entered into a 5 year, £300M contract!  Are you seriously saying you did not actually know what was expected of you to fulfill that contract?

Social media networks, such as Twitter, soon started to highlight the problems courts were facing. This was picked up by more traditional media outlets and articles have appeared in The Guardian, The Lawyer, The Law Society Gazette, and the BBC website. Basically, (and interpreters must be given credit for running a publicity campaign that puts us lawyers to shame), a fuss was made. The fuss got attention

So much so, in fact, that Her Majesty’s Courts & Tribunal Service (HMCTS) issued a press release last week.

"With immediate effect HMCTS will revert to the previous arrangements for all bookings due within 24 hours at the magistrates' courts … we will revert to previous arrangements for urgent bookings required for bail applications, deports and fast track applications in the first tier tribunal immigration and asylum and urgent bookings in the asylum support tribunal."

"We understand that some staff and judiciary have sympathy with existing interpreters. We must however do all we can to encourage sign-up to the new arrangements – the new contract has the potential to bring significant benefits to both interpreters and the justice system as a whole."

Not surprisingly, the vast majority of NRPSI-registered interpreters see no reason to help the MoJ out of a mess wholly of its own making and are not cooperating with this relaxation of the contract. 

Things will only improve when ALS increase the rates of pay it is offering, thus tempting qualified, highly-skilled, interpreters to sign up with them. However, their new masters at Capita are unlikely to be happy with the profits from the contract being reduced – probably substantially reduced.

In the meantime, public money and court time is being wasted by delayed or aborted hearings.  One suspects there is “limited accurate management information available” to determine the actual cost but it is increasing by the day.

I cannot end this article without commenting on my concerns about the quality of those interpreters so far signed up with ALS.  I have received anecdotal evidence (which I have no reason to doubt) of a lack of experience, knowledge of procedure, and even the language they are supposed to be translating.

The figures do tend to suggest that there will be a diminution of quality.  ALS claims that they have signed 3,000 interpreters to run this contract. There are not 3,000 nationally-registered interpreters (the NRPSI website says there are “over 2,000”).  Of those members, at least 50% - and probably more than 60% - have refused to enrol with ALS.  I would be greatly surprised if even 30% of the 3,000 interpreters have the necessary qualifications and experience to work in the criminal justice system

I headed this article “Please be quiet”.  Some explanation is required.  Probably the most important thing that is said to a detainee when in custody at a police station is the caution.  It’s complicated for most lay persons in English, so its careful and accurate translation is crucial to the course of justice. Every day, what is said after that caution is administered impacts on just about every trial in every criminal court.

The caution starts “You do not have to say anything …” reminding the interviewee of his or her right to remain silent and not answer questions. A basic right at the heart of criminal justice – the right not to self-incriminate. The caution then goes on to say “… but it may harm your defence if you do not mention, when questioned, something you later rely on in court”.  This reminds the detainee that remaining silent may impact upon his trial and that the court can draw a conclusion that his remaining silent was because he had no defence to offer, or that a subsequent explanation at trial may not be believed.

It is therefore extremely worrying that an interpreter of my acquaintance, one of the most experienced (and trusted) in the area, recounts an interview where “You do not have to say anything” was translated by the interpreter as “Please be quiet”

I imagine that the knock-on effects of this contract will be occupying the Court of Appeal in the months to come!

Can I end by thanking Yelena McCAFFERTY at Talk Russian for assistance with some statistics

Footnote: Since John wrote this - a week ago, now - nothing has changed. Today, up and down the country, courts will be without interpreters, the administration of criminal justice grinds ever slower, and more and more public money is being wasted. The interpreters (the proper ones, that is) remain solid. An impasse has been reached. Someone will have to back down, and I doubt very much that it will be the interpreters!

MoJ interpreting hub a ‘false economy’

Our most recent blog post on the MOJ contract with ALS appears to have attracted a lot of attention not only amongst readers of the blog but also in the media. We understand that BBC News will be running an article soon and the following article has appeared in this week's Law Society Gazette

MoJ interpreting hub a ‘false economy’

MOJ Framework Contract with ALS - There may be trouble ahead ...

I make no secret of our firms' very real concerns about the MOJ contract with Applied Language Solutions and are thus pleased to give this letter, from the Professional Interpreters' Alliance some wider publicity

Already, we have experienced a problem with a client - a man making his first ever appearance in a court -  being kept for several hours in a court cell with no way of explaining the delay to him. The police had booked an interpreter for 9.30am. ALS forgot to send someone. An interpreter eventually arrived at 1.35pm

I would urge everyone to make sure that any problems are reported to the MOJ at the email address or telephone number contained in the letter

Dear Sir or Madam,

Ministry of Justice Framework Contract with AppliedLanguage Solutions

We are writing to you on behalf of the Professional Interpreters’ Alliance, concerning the Ministry ofJustice’s decision to move to a commercial Framework Agreement for the deliveryof language services in the Criminal Justice System.

The Framework Agreement with Applied Language Solutions Ltd (ALS, now part of Capita PLC) has become operational and extends across HMCTS, CPS, NOMS and a small number of police forces. Consequently, we would like to make you aware of some surrounding issues.

The Ministry of Justice’s Framework Agreement with ALS represents turning back the clock on decades of policy development. The National Agreement on Arrangements for the use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System, as revised 2007, is now defunct.

It was introduced to address concerns raised by Lord Runciman about the difficulty of obtaining goodq uality interpreters in his Report of the Royal Commission on Criminal Justice in July 1993, and in Lord Justice Auld’s Review of Criminal Justice in 2001.

In 2006 a Home Office Circular (17/2006) reinforced the importance of the National Agreement and the quality ofinterpreting services, and subsequent amendments were made to strengthen the National Agreement, ensuring only registered and qualified interpreters could practise in the Criminal Justice System.

Under the previous arrangements, spoken-language interpreters were primarily drawn from the National Register of Public Service Interpreters (NRPSI). These interpreters are formally qualified, experienced and CRB-checked as a minimum (many also have higher levels of vetting such at Counter Terrorist Check and Security Check),and are registered professionals who are accountable through a professional code of conduct and an independent complaints and disciplinary procedure.

Registered Public Service Interpreters (RPSIs) and their membership organisations opposed the Applied Language Solutions contract from the outset. The refusal by the majority of RPSIs to provide their services through ALS received media coverage and has caused certain parliamentary questions to be asked.

To quantify this opposition,NRPSI registered interpreters started a list of those refusing to work forjustice organisations through Applied Language Solutions Ltd. So far, 60% haveregistered and in some areas, 3 out of every 4. A summary of the current listentries showing national refusal rates by language and by area can be seen here

The Professional Interpreters’ Alliance is concerned that many legal professionals working in HM Courts and Tribunals Service seem to be unaware of the type of person now delivering these services on behalf of Applied Language Solutions Ltd whenR PSIs are no longer being engaged.

We are extremely fearful of the consequences of this national contract for Equal Access to Justice for non-English speakers. A defendant, complainant or witness is now sometimes being provided with the assistance of a person with scant knowledge of one or both languages, no formal interpreting qualifications, no prior court or police interpreting experience and potentially no personal vetting.

You can appreciate the inherent dangers to the delivery of justice that arises out of inadequate interpreting. The cost to the judiciary of adjournments, mis-trials, appeals and failed prosecutions as a result of inadequate interpreters is already rising by the day.

Justice cannot be done without experienced, professionally qualified and vetted registered interpreters.

We trust this information will be of assistance to your understanding of the present situation and urge you to be observant, vigilant and critical with regard to the quality of interpreting you receive and witness. PIA understands that all complaints arising from the new arrangements for booking interpreters and commissioning translations through Applied Language Solutions are to be referred to Louisa Carrad at the Ministry of Justice: louisa.carrad@cjs.gsi.gov.uk; telephone 07775816972.

Independent freelance interpreters with extensive professional experience in CJS can be engaged directly via the National Register of Public Service Interpreters

The Professional Interpreters’ Alliance welcomes every opportunity for dialogue with interpreting service users so please don’t hesitate to contact us should you wish to receive more information about the matters raised in this letter.

Yours faithfully

 Madeleine Lee, Director
John Podvoiskis, Director

Professional Interpreters'Alliance

Bureaucracy Gone Mad – The LSC and Form LAC1

On 3rd October, 2011, a number of changes were introduced by The Criminal Defence Service (Funding)(Amendment) Order of 2011. the purpose of these changes were two-fold; to reduce the criminal legal aid budget and to discourage solicitors from advising their clients to elect trial at the Crown Court.

The latter reason had a number of benefits for the Ministry of Justice, The latest figures (taken from  here) show that the average administrative cost per case in the Crown Court  is over £2,800 – considerably more than the equivalent cost in the magistrates court. To this figure must then be added the costs to the legal aid fund and it goes without saying that the majority of the criminal share of that fund is spent on Crown Court cases.

It cannot be argued that, whatever the merits, a defendant electing trial at the Crown Court had financial benefits for the defendant’s legal representatives in legal aid cases. A higher magistrates’ court fixed fee would be payable, together with the litigator’s fee at the Crown Court.

Accordingly, for cases where legal aid was granted on or after 3^rd October 2011, a fixed fee was introduced for both litigators and advocates in cases where a magistrates’ court had accepted jurisdiction but the defendant had elected trial by jury but no trial at the Crown Court was commenced.  The fees were set at such a low level that keeping the case in the magistrates’ court became more profitable for solicitors.

To reinforce this, the Funding Order abolished payment for work done in the magistrates’ court prior to, and including, the formal committal for trial.

This left a problem; How would the Legal Services Commission (the LSC) know, when assessing claims for litigator and advocates fees in the Crown Court, how the case had reached the Crown Court? Had the defendant elected, or had the court declined jurisdiction?

Easy!  Amend the respective claim forms to include a section asking (by tick box) whether jurisdiction was declined by the magistrates or whether the defendant elected trial by jury.  However, the LSC were dealing with lawyers and, obviously, lawyers cannot be trusted to tell the truth. Accordingly, the amended form asks for supporting evidence of the mode of trial decision in the magistrates’ court to be provided. No supporting evidence? Substantially reduced fee will be paid!

This gave more work for the “form designing” department at the LSC to do.  They came up with the LAC1

This form is to be completed by the defence giving details of the defendant’s name, offence faced, and the name of the magistrates’ court and then signed by the Court Legal Adviser or Court Associate to confirm that the defendant had been “directed” to the Crown Court by the magistrates’. The form also requires that the defence also give further vital information to the LSC; the number of the court room the hearing took place in, and also whether the hearing was in the morning or afternoon.  One cannot but hazard a guess that such questions are merely there to fill up space to justify an A4 size form.

However, it is not now uncommon for a defendant to be unrepresented at the committal stage because these proceedings are no longer remunerated under a legal aid order. No solicitor was involved to get a LAC1 signed.  How will the supporting evidence be provided to the LSC to ensure the full litigator and advocate fee is paid for the Crown Court work?

The simple and sensible answer would be for the solicitor to send to the court a completed LAC1 for signature and return.  This is where the most ridiculous bureaucracy kicks in. I have been astonished by many of the decisions of the LSC in the past but this one beggars belief, especially in the current financial climate.

It will thus come as no surprise that sending a LAC1 to the court is not allowed!  The legal advisers have been told that they cannot backdate these forms. Why?  They do not know. They are just not allowed to do so!

All is not lost, however.  The LSC will accept an extract from the court register confirming that jurisdiction was declined by the magistrates as “supporting evidence”. 

So, the solicitor writes to the court not enclosing a LAC1 but requesting an extract of the register. This extract will not be from the date of the committal but from the date jurisdiction was declined. The extract may not tell you in which court room and in what session the decision was made but this, apparently, is no longer important.

Extracts from the court register are not free.  How much they cost depends to which court you are making the application. This week we have been quoted £5 by one court and an exorbitant £60 by another. No cheque from us, no extract.  Do not fear, however, because.... THE LSC WILL REIMBURSE YOU!

Let’s get this straight then. The no-cost and easy option of sending the prescribed form to the court for signature is forbidden

Instead, the LSC (who are funded by the Ministry of Justice) will reimburse up to £60 to the solicitor who has sent a payment to Her Majesty’s Courts and Tribunal Service (who are ... yes ... funded by the Ministry of Justice)

You couldn’t make it up!

“Stop Delaying Justice” ... or “Another Attempt to Cut the Cost of Justice”?

We received an email from our Justices’ Clerk on 23^rd December entitled “Dock Brief”.  It was our last working day before Christmas and it appears no one had opened it. I eventually read it on Wednesday. It contained a newsletter for all the advocates in Lincolnshire and it appears that this will be a regular publication. This is a good thing!

However, the first article in the newsletter was a reminder to us all that the initiative “Stop Delaying Justice” will start to be applied as from 1^st January 2012. We are not convinced this is a good thing!

Perhaps an overview of previous attempts to speed up the wheels of justice would be useful here. We are sure we am forgetting a few earlier initiatives (they seem to come and go so often) but the first to have any real impact was “Criminal Justice: Simple, Speedy, Summary” or, as we now all know it, “CJSSS” (CJ-Triple S) which was introduced in 2007.

[An aside: a story doing the rounds in 2007 was that the original name for this was Criminal Justice: Simple, Speedy until someone realised that that would leave the acronym as CJ:SS. Conscious of the connotations of the double S and, more likely, wishing to avoid the inevitable comparisons that would be made, the word “summary” was hastily tacked on. “Summary” never did make much sense; it could only apply to summary justice in the magistrates’ court anyway]  

The purpose of this initiative was to speed up the justice system so that cases reached court sooner after charge and that the number of hearings was reduced from a claimed average of five hearings down to one for a guilty plea and two for a contested matter.

Looking back at the guidance given whilst CJSSS was still in the preparation stage, the scheme always intended that a plea would be entered at the first hearing.  This did not meet with a lot of approval from defence lawyers and CJSSS has been implemented with varying degrees of success around the country. Looking at the statistics, it has had no impact whatsoever on the number of ineffective trials (which has been at a constant rate of 18-19% for the past five years). It has had no effect on the time taken from date of offence to the commencement of proceedings (it has remained at 84-85 days). The average time taken from date of offence to case completion in the magistrates’ courts has, however, reduced by about a week and a half.

Since the implementation of CJSSS we have had “Streamlined Process” where the police attempted to identify likely plea and thus tailored their file preparation accordingly, with a much shorter file being prepared for likely guilty pleas. Again, this has had no appreciable impact but has led to some files showing up an alarming lack of legal knowledge on the part of police officers and their supervising officers.  Two cases immediately spring to mind, both files prepared as likely guilty pleas

·         On a criminal damage case “The defendant admits criminal damage, but denies causing the damage intentionally or recklessly”;

·         On a theft of copper wire “The wire was old, decomposing, and had clearly been abandoned”

There have been several others, including the introduction of the Case Management Form which, for the first time, required defence lawyers to effectively disclose some of the advice given to their clients

Back to the newsletter; we are advised that “Stop Delaying Justice” emphasises the need to:

• Insist on a plea at the first hearing save in exceptional circumstances;
• Ensure that the parties identify the real issues at the earliest possible stage in the proceedings;
• Rigorously examine the need for witnesses to attend court and only allow them to be called where necessary;
• Give appropriate directions to ensure cases are managed properly;
• Robustly react to failures to comply with the rules and court directions.

We are reminded that this particular initiative is simply a means to ensure greater compliance with the Criminal Procedure Rules 2011 and thus has legislative backing. We are constantly advised that this initiative springs from the judiciary, but one cannot but help think that the Ministry of Justice is lurking closely in the background. 

It should be mentioned that, here in Lincolnshire, the courts have an excellent record of complying with the statistical guidelines laid down by the Ministry of Justice for such things as pleas at first hearing. It is our understanding that Lincolnshire is, in fact, the second best county in the country for compliance. This is in no small part to the fact that defence lawyers in the county have, on the whole, embraced the changes and have tried to assist in the smooth running of the courts. In theory, therefore, this new initiative should not affect us too greatly. 

We do, however, have real concerns that courts will lose sight of the reason they are there – to dispense justice – in the seemingly endless quest to comply with time targets set nationally by the Ministry of Justice. We are also left with the feeling that “Stop Delaying Justice” is aimed much more at the defence than the prosecution. 

We are told the magistrates will “insist on a plea at first hearing save in exceptional circumstances”. There is no guidance on what will be “exceptional circumstances” but the training material given to magistrates (a copy of which can be found here, thanks to the London Criminal Courts Solicitors’ Association) makes it plain that the sheer size of the prosecution evidence, or the possible complexity of the case, will not be sufficient to avoid entering a plea at first hearing. Recently, we were refused an adjournment in a case where the statements attached to the police’s summary of the case (and much of the summary itself) referred to an offence for which the defendant had not been charged! 

Traditionally, defence lawyers are blamed for “dragging cases out” in the totally mistaken belief that we do so to increase our fees. For those that still do not know – we are paid on a fixed fee basis. It is definitely in our own interests to deal with cases quickly. There is no “profit” in us getting a case adjourned. We ask for adjournments because we need them. Whilst on this point, it is clear from the training materials that waiting for the result of a legal aid application will not be an “exceptional circumstance”. 

This causes us the greatest concern, however; “Rigorously examine the need for witnesses to attend court and only allow them to be called where necessary”.  What does this mean, exactly?  One cannot escape the answer that this is effectively requiring the defence to reveal the likely cross-examination of a witness in advance of the trial. How else will a magistrate ascertain the need for a witness to attend court?  

This could be taken to a not-illogical conclusion that a defendant who has exercised his right not to answer questions in interview may then find that he has forfeited his right to have any live prosecution witnesses at his trial.  

What happens if the court refuses to allow a witness to be called? It would appear that the only recourse that the defence will have will be to have the decision judicially reviewed. Not really an option for the unrepresented defendant, however. 

We must, of course, see how this new initiative plays out in practise. It may be that it will speed up the judicial process but history suggests that it will not do so. More worrying, though, is that there is a real possibility that it lead to a higher conviction rate as cases are rushed through the court with indecent haste.

Virtual Courts - Justice and the camera

This piece originally appeared in the blog Tales From The Slab and we thank both Dave Thomas and John West JP for allowing us to reproduce it

Recently in the news I caught a piece on drink-drivers losing their licences within 90 minutes of being charged. Of course, I pricked my ears up; obviously being actively involved in helping such drivers to do just that. The link to the article can be found here. It involves the defendant, having been charged and whilst still at the police station, to plead guilty to the magistrates court via a live stream video link. The argument being that it saves everybody’s time and relieves the defendant of the luxury of keeping his or her driving licence until their subsequent court appearance. I am now to understand that this method of plea is being considered for other offences as well with the intention by the government of rolling out the scheme to all courts by 2012.

This has generated a lot of debate on both sides of the divide and I am very grateful to Mr. John Storer, who is a legal defence solicitor and Mr. John West, who is a Magistrate for their own take on this matter and their contribution to this blog. Thank you gentlemen.

In the 15 years I have been in law enforcement I have seen a great many changes to the way the police operate but it’s fair to say I have seen even bigger changes to the way the justice system as a whole operates. Perhaps it would be useful to recap on how things used to be and how we have arrived at the point we are today. As is the case these days the changes have been made in an attempt to save money and speed up the justice process; as that old saying goes “The wheels of justice grind ever slowly.”

As a young probationer, having arrested a suspect for an offence they would be taken to the police station and interviewed. It would be normal practice to then bail the suspect to a future date in order that the necessary enquiries could be made, that is unless evidence was collected at the time to provide reasonable substance to the allegation. It was the custody sergeant who made the charging decision and decided the most appropriate charge. Clearly, in those times, the custody sergeant was crucial to the justice system. If a file of evidence was complex then I would take it to a decision maker based within the CJS department at the station. Decision makers were experienced police sergeants who knew the law just as bit as well as anyone else. Again, they would decide if there was enough evidence to charge and for what offence.

At some point in the past, the decision to charge a suspect with an offence was taken out of the hands of the custody sergeant/police and given to the CPS. The main reason for this was to reduce the number of cases going to court where they would ultimately be thrown out or the defendant be found not guilty. Thus increasing the ratio of cases versus conviction and relieving the courts of unnecessary workload. As a result of this massive change, CPS took up residence in all major police stations within the country. This became problematic for the officers on the street. A long queue soon formed outside the CPS office and it was common to arrive at the office only to find that all the available slots had been taken for that day. This increased the pressure on officers with bail dates looming.

The other major problem was that the CPS only operated “office hours.” Unfortunately crime is not a nine to five business. Only if a suspect was ineligible for police bail could officers contact the CPS out of hours by means of telephone. Again this increased the burden on Officers as all evidence would have to be collected and faxed/emailed to the CPS lawyer. It was not uncommon for officers to be on the phone to a lawyer for over two hours if the case was complex. The knock-on affect was that those officers were not on the street and therefore not in a position to back up their colleagues.

There was also a problem with daytime charging. The CPS offices were getting swamped and so extended their hours to 10pm, but this still was not enough and ultimately the CPS withdrew from the police stations. The only way now to get a charging decision is to contact the CPS by phone and that is how it has remained to this day. Changes to section 24 PACE have also made increasingly difficult for officers to bring a suspect in as not meeting the newly introduced “necessity criteria.”

So that’s where we are at present. Back to the original point, I see no reason why, if a defendant is pleading guilty to an offence, why it cannot be dealt with via video link. For years, defendants having been summons for a driving offence have had the opportunity to plead guilty by post. Of course, if the defendant wishes legal representation at the time then that is a different matter. Notices of Intended Prosecution sent to drivers by post gives them the opportunity to plead guilty to the alleged offence. I don’t see it as an inroad to the erosion of court procedure or the rights of the defendant.

The Defence Lawyer.

The Virtual Courts pilot scheme operated in a London (Camberwell Green) and a North Kent (Medway) magistrates’ court between May 2009 and April 2010. During the course of the pilots, 16 police stations came “online”, 15 of these being in London. The Government hailed the pilot as a success and hence the suggestion that such courts be rolled out across the country.

However, the pilot scheme may not have been the “success” that the Government and recent newspaper and television articles would have us believe.

The Ministry of Justice commissioned an evaluation of the scheme, which can be found here. That report concluded that Virtual Courts actually added costs to the delivery of criminal justice in the pilot areas. Although savings were made in such areas of prisoner transportation, and the need to courier the police file to the Crown Prosecution Service, these savings were exceeded by the high set-up cost of the system, the costs of the additional burden placed upon the police custody staff, and the costs of running courts out of normal business hours.

There are not that many courts outside our major cities that deal with six custody cases a day, let alone an hour. Accordingly, video-link courts are going to be of use only to those courts which receive a high number of remand / custody cases every day.
The pilot showed up other problems as well. Much court time is saved, every day in every court, by the conversations held between prosecution and defence representatives before the court starts sitting. The slight amendment to a charge, the negotiations over bail conditions, etc. This could not happen when the defence solicitor was sitting in a police station and the prosecutor was in court.

Also, there was a feeling amongst the judiciary that defendant’s were not taking the court as seriously as they should, because it was difficult to convey the “dignity of the court” over a live video-link.

It is that last point that is my main objection, going back to the start of this post, for drink-drivers being dealt with by a virtual court. Driving with excess alcohol in one’s breath, blood or urine is a serious offence. It carries up to six months’ imprisonment, a maximum fine of £5,000 and a potentially unlimited period of disqualification from driving with a minimum of twelve months. Many of those convicted of this offence have no previous convictions. For them, the shame and embarrassment of appearing in court is as much the punishment as the fine and driving ban. I believe that the seriousness of the offence, and the impact of the court hearing, would be diminished by simply placing the accused in a video booth shortly after charge.

My other major concern is whether the defendant is actually fit to be placed before a court. Once a person has given a positive breath test (for it is the breath test cases that are most likely to be impacted), it is usual policy for them to be detained until they are sober enough to charge. In my experience, being “sober” usually means when the police believe he is no longer over the drink/drive limit. Very few are kept until they no longer have any alcohol in their system, because it can take 24 hours for alcohol to be totally eliminated from one’s system.

I am no “Luddite”; indeed, I am all in favour of embracing new technology. However, we must not start using technology for the sake of it. A court of law is, and rightly so, an imposing place. The effect of a court appearance should not be diminished to the equivalent of a conversation over Skype!

Do we really want defendant’s “appearing” before a court whilst they still have the equivalent of a couple of pints of beer in their system? Can we be certain that, although they are sober enough to charge, they are sober enough to appear in court and enter a plea?

Finally, the question of legal advice needs to be dealt with. Persons arrested for drink/driving offences do not have a right to have a solicitor attend upon them at the police station free of charge unless there is going to be an interview. They get telephone advice from their own solicitor or, more usually, CDS Direct (a telephone advice service run by the Legal Services Commission). That advice is sometimes given before the breath specimen procedure has commenced.

John Storer is a partner in a specialist criminal defence firm of solicitors in Lincolnshire and a former Deputy Clerk to the Justices

The Magistrate.

The Government has shown its support for virtual courts and proposed the giving of evidence from police stations for police officers and witnesses. In my view this is wrong on several levels. The fundamental task of the police is to prevent crime and, where committed, detect and apprehend offenders and place them before the courts. Unfortunately with the introduction of simple cautions and then conditional cautions the police have stepped over the line into deciding punishments. This government has decided, in its agenda, to save money and without regard to justice to move forward even more into areas, which were once the provenance of the courts.

Unless one is a regular customer, being taken to a police station is a harrowing experience. Many will be glad to get out of there and will take the first avenue offered. How many times have you read of a detained person taking the offer of a caution just to get out, little knowing the effect this may have on their life thereafter? The current attacks on legal aid provisions will do nothing to stem this. Even when charged such persons will be expected to now appear on a video link with the court. Perhaps they will have had access to a solicitor. However the defendant is still within the police station and even if his solicitor is there he cannot speak comfortably. The Justice Minister, Jonathan Djangoly, has said he sees no reason to allow the client/solicitor access to an area where they won’t be overheard. So we have a situation where a person is arrested, charged and sentenced within only a few hours. Great says the government money saved and courts can be amalgamated or closed.

Added to this we have the proposal to allow police officers and civilian witnesses to give video evidence from police stations. I know police officers can be waiting round at courts for their case to be called but so can members of the public. I sit on video remands from prisons where all we see in court is a TV picture of the defendant. I know there is a prison officer there with them but I cannot see them. I also cannot see who else is in the room. The same situation will be more evident in police stations. There will be rules around who is allowed to be present with the defendant but how can we be sure these will be complied with? Witnesses are not, understandably, allowed to confer and there are already concerns about police officers writing their notes together. How then does the court satisfy itself that the other police witnesses are not watching the evidence or even in the same room? How comfortable would a defence witness be in giving evidence in such circumstances? I believe that it is in the police’s best interest to be removed from the case after arrest and charge. There was a time, not so many years ago, when it was not uncommon for magistrates to refer to “our officers” and the public would unquestionably support them. Sadly this is not longer the case.

Magistrates’ Courts are seeing less and less cases. Courts are being closed or amalgamated and legal aid is under attack. Justice is not (and has never been) about speed or saving money. This country has always been proud of its system of justice. Are we really saying it’s acceptable to cut corners for the sake of convenience and saving money? Well it’s not the reason I became a Magistrate and I don’t know if I would want to remain one if this became the status quo.

Mr. John West is a Magistrate and Author sitting in criminal, family and crown courts.

So there you have it. As with any multi angle piece I do not draw any conclusions but let you the reader make up your own mind. I will say this though and I am sure both John’s may also agree. There are matters that should be going to court but aren’t. CPS has become de facto juries in what can and cannot be allowed to court and therefore by default deciding whether a defendant is guilty or not guilty. I fully support the independence of the judiciary and only they should decide the guilt of a person. As long as that is held intact only the method of trial becomes an issue.

Accordingly, many defendants will contact a solicitor between court and first appearance to get advice. There are occasions, admittedly rare but it happens, when a person will have a defence to the charge. Perhaps, more commonly, the facts of the offence itself means that the defendant can argue that special reasons exist and that no disqualification should be imposed. This latter area of law is complex, and defendants do not often realise that such reasons actually exist. There is a real danger that defendants will appear before a court on camera, without having legal advice, enter a plea of guilty, and not mention the facts that may trigger a “special reasons” argument

The loss of the ability to drive is probably the greatest punishment that a person convicted of drink/driving suffers. It impacts not only on them, but also their families and, often, their employers. Many defendants use that time between charge and first appearance to make necessary arrangements and to let their employer know that they will soon be no longer able to drive. Is there a risk that defendant’s appearing before a virtual court within hours of charge will enter a plea of not guilty to delay the inevitable?

 

T3 - a letter to the Law Society Gazette

The headline on the front page of this week's Law Society Gazette reads "Firms "draw line" on paperless plan" (available here) immediately drew our attention. We would very much like to work in a paperless office but realise that such a dream is still several years away. We hope that the T3 (Transforming Through Technology) initiative of the CPS will be a success. 

We have our doubts, though. There are many issues to be tackled, such as wireless internet access in courts, police stations and prisons, and even practical points such as the lack of electrical sockets in most court rooms. There still seems to be no firm proposals as to how evidence will be delivered to the many defendants who turn up at courts every day and who have no legal representation

At the moment, however, our most pressing concern is the secure email system (CJSM) which is expected to deliver the bulk of this electronic information between all the agencies of the criminal justice system and thus make T3 a success.  We simply do not think the system is up to the job. Our reasons for this have been outlined in an email one of the partners, John Storer,  has sent to the editor of the Gazette in response to the article mentioned and the body of it is set out below

Dear Sir

Let me say at the outset, I am not a Luddite. My firm is quite happy to work in a paperless environment and we have been making enquiries of the CPS as to why we cannot receive evidence by electronic means for many years. In fact, our first request mentioned floppy disks!

However I feel I must comment on the the statement of David Jones, director of the CPS's efficiency programme, that all criminal defence firms need to do is join the secure email system (CJSM). Those unfamiliar with CJSM may imagine some type of snappy, intuitive, email interface similar to other online email providers, such as Gmail or Yahoo Mail.

If only that were so!

The truth of the matter is that the CJSM system software is several years past its "sell by" date and I do not believe it is now fit for purpose.

Problems start as soon as you access the site. There is a notice on the log-in page telling you that users of Internet Explorer 8 or 9 (easily the most commonly used software for internet access) may experience problems. They will. CJSM does not work with IE8 or 9 without switching to "compatability mode". It does not work very well with Google Chrome. The warning of this problem has been there for over 6 months, but no improvements to the interface have been made

I could go on at length about the slowness of the secure email system, the poor search system, the needlessly complicated way of assigning an email addressee from one's contacts, and even the way in which contacts are displayed. There are other problems as well

My main concern, though, is the lack of memory. We are a small firm in a small market town. We use the system to email the police for bail-back information, and we send all correspondence to the Crown Court and CPS via the system. The vast majority have been simple emails with no attachments. In the first six weeks of using the system, we had used 25% of the available memory. The emails cannot be forwarded to another email system and thus we are left with no choice but to print off the email and then delete it. So much for a paperless office!

Once we start receiving electronic files, I anticipate we will run out of memory within three months. Larger firms will be experiencing difficulties within weeks.

We actually welcome this new way of working in the criminal justice system, but for it to be a success the CJSM system needs a major overhaul and upgrade before T3 kicks in in April. It is my understanding this is unlikely to happen.

We actually raised these points back in September and had the following reply from Diane Aldsworth at the Ministry of Justice ICT department forwarded to us:

"We are planning to procure a new secure email service but this may be a few years away as we await developments in other parts of Government IT.  However, in the meantime we are looking to see if we can improve the user experience although this won’t be a full overhaul. 

I would be grateful for any ideas on specific improvements that could be made."

The history of Government procurement of IT systems deserves, and probably has, several blogs of its own.  Suffice to say, very few public sector IT systems cover themselves in glory. Clearly we are stuck with the diplodocus-like CJSM fror the foreseeable future. Accordingly, there has to be a real risk that T3 will fall at its first significant hurdle.

As we mentioned at the outset, we welcome the introduction of technology into the criminal justice system. However, it has to be modern technology - using software that is clearly years out of date is not going to work

Incidentally, suggestions (polite ones, please) for the improvement of CJSM can be sent to Diane Aldsworth