This is a true story and is just one, of many reasons why I oppose QASA and PCT.

The more fundamental and principled arguments have been argued elsewhere, they include lack of client choice, the closure of hundreds of solicitor firms, the disintegration of the independent bar and the derailment of our criminal justice system. This story, however, doesn’t touch upon those ideals but rather, as what I fear may become in the brave new world of a post PCT environment.

The story starts some years ago and on the day of the England v Slovenia game world cup match. It was a sunny day in June, but far from sitting in the pub drinking beer and awaiting the match, I was driving up to St Albans Crown Court, on a late return to cover a 2-3 day making off without payment / dangerous driving trial. The facts were fairly straight forward. My client, a Mr Rochford, had been accused of filling up at the petrol station, making off without paying for the petrol and driving dangerously in his bid to get away. The issue was one of ID. The vehicle driving had its number plate captured by the automatic system at the petrol station, but that CCTV was of insufficient clarity to capture who was the driver of the vehicle.

After a quick review of the papers I thought this should be simple enough and just as I was thinking matters were going to be OK I came across the defence case statement. To say it was drafted badly would be understating matters. On any view it was deficient, on some views it was laughably deficient. Grateful that it was not I who had drafted it, I turned up at court, had a conference with my client and then entered court ready for trial.

I recall being taught at Bar school that our duty is to defend without fear or favour all of our clients but had little idea that the next two hours would demonstrate exactly what this could mean in the real world, down at the ‘coal face’. I was greeted by the Judge and told instantly that the defence case statement was deficient. I nodded. I was then told to amend it. I respectfully declined to do so. My problem was this. As matters stood, I considered the evidence against my client to be weak. Indeed, I considered it likely that a submission of no case at half time would be successful. The issue of the defence statement ought not to come into play given that either the case would stop at half time, or if it proceeded further, the client was not going to be giving evidence and so could not be cross-examined upon it. Had the defence case statement been amended matters would be very different. The prosecution could then apply to use the inconsistencies in the defence case statements as part of the prosecution case, which might of itself get the case beyond half time and would certainly be detrimental to the clients’ case. Again, the judge told me to amend it, again, I declined so to do. There then followed an exchange which has been seared, indelibly on my memory:

Judge: “Either you amend the DCS or you, and your client, will be sent down to custody.”

Myself: “Before your Honour makes good on your threat, may I have some time to speak to my lay client?”

Judge: “ That was not a threat but a reality. You may have 10 minutes”

10 minutes later I was stood in the small anteroom outside court with my lay client, having explained to him that we shouldn’t amend his DCS as to do so would harm his case, that if the Judge sent us both down then so be it. He then turned to me and said, “I don’t mind, I’ve done bird before and don’t want to get you in any trouble. We can amend it if it will save you any bother”. Fortified by his concern for me and mindful that this is what defending without fear or favour means, to stand up for your client, in the face of a judge and in the face of a threat of custody I re-entered the lions den. Leaning over to the prosecuting counsel to give him my wife’s telephone number in case things went bad was perhaps the most sobering experience of my career to date. I genuinely believed I was about to be sent down.

The point of the story is this. How are we to be assessed by Judges under QASA when our duty is to stand up fearlessly before them. How are we to engender our clients trust if they know we are trying to please the judiciary. How can it be right to impose a conflict of interest in our professional duty, on the one hand to do what is right by our client and on the other to try and keep our trial judges happy with our performance. Moreover, in the post PCT world, god forbid it ever gets implemented, can anyone believe that a Stobart in-house advocate would place his clients needs ahead of his production-line need to expedite a case, to risk custody himself over doing what is right for the client or to stand up to a judge and risk his “quality assessment” being removed. I don’t believe it and I hope it never gets implemented.

As to my story, well the judge backed down, at least overnight and the following day, a QC from the Bar Council attended and spoke to the Judge in his chambers. I was saved imprisonment although the judge did send my client down for failing to amend the DCS. After working through the night we appeared at the Court of Appeal the next day, where they granted bail to my client pending a full appeal hearing, which we duly won. (R v Rochford [2010] EWCA Crim 1928). As to the trial, that took place in front of a different judge and at half time, the client was duly acquitted.

Michael Turner QC ends his weekly addresses with the phrase “Do right, fear no one”. That phrase sums up to me, my duty in going the extra mile for my clients. I fear for a world when production line advocacy treats clients as commodities and where the person who is feared is ones manager who holds the monthly target quota over you in telling you, “you have to get 15 people to plead guilty this month.” I fear for a system where the Judges we need on occasion to stand up to, have the power to assess our performance and where one fears to take a point in case it reflects badly upon your ‘grading’. I fear for a future where because of the constant cuts to fees, the independent criminal bar is no more, and the Mr Rochford’s of the future will be represented by those with no backbone and no independence. For these reasons, amongst others, I say no to PCT and no to QASA.

Richard Bentwood

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