Disorder in the courts – and the local gang boss walks free

The Guardian, April 15 2004

Joey Ganguli is at it all the time. He lives and breathes and earns his rolls of cash right in the middle of the Asian gang wars which run through criminal life in the East End of London like beach life runs through Blackpool.

He is 21 now and he has been selling drugs since he was 14. In the beginning, he stood on the pavement and sold them for other people. Now he is a top man and he pays other 14-year-olds to take his risks for him. He worries about his work. The Brick Lane Boys have been threatening his patch. But he doesn’t worry too much. He has knives. He has guns. He has his ways.

It’s like he says: “In street life, you need power. You have to keep people in your hand, you have to use them, get them to make money for you.” So when Joey walks the streets, he has his hands in his pockets and his chin in the air, because he’s the lord of his manor: he has £150 of Timberland boots on his feet, £400 of leather jacket on his shoulders and a hair cut that is pure style. And when he takes girls to the Scala club at night, he’ll spend a grand, maybe two, because he can afford to, because he is at it all the time.

And when Joey Ganguli turns up in the dock at Thames Magistrates Court, his case plays out an uncomfortable truth: the courts work in a state of disarray.

As the crown prosecutors’ inspectorate found in October 2002, nearly half (44%) of all pre-trial hearings fail to proceed on the day they are listed. Reports arrive late, files go missing, forensic evidence is delayed, witnesses fail to show, defendants disappear, even the police fail to turn up. And when the day of trial finally arrives, 70% fail to proceed. Numerous prosecutions squirt through the gaps in this clumsy machine, leaving guilty defendants to walk free. The waste of time and money for all concerned – and the sheer loss of authority for the criminal justice system – is something which this government has attacked with relentless energy.

Like most other prolific offenders, Joey is not often troubled by the law. In all his seven years of gang dealing, he has never once been busted for selling drugs. Or for carrying a firearm. Or a knife. He’s been pulled only five times, for little things. The first time was a minor assault when he was only 15 and he was chasing one of the Brick Lane boys down the middle of the road in Stepney and ran straight into the police. He was fined but he never paid it, and the bailiffs couldn’t collect because he still lives at his parents’ house and they couldn’t tell what was his and what belonged to his parents. Mostly, he’s been done for driving offences. (He shouldn’t be driving at all. He’s never had a licence. He paid a dodgy driving instructor to teach him.)

But then, finally, about 18 months ago, he got into some trouble for drugs. Joey says it was a silly mistake. He should never have been selling crack in person like that and, if he was going to do it, he should have been holding the rocks in his mouth so he could swallow them. As it was, he tried to shove them down his trousers, but he was too slow, so he was caught and charged. The good news was that he had only four rocks on him so they never charged him with dealing, just possession , as well as driving without insurance. And when it came to court just over a year ago, the news stayed good for him.

They gave him a 24-month community rehabilitation order, which basically meant he had to go and sign a book at a probation office once every week or so. A few months later, he got busted for another driving offence and they just gave him another 18-month community rehab order to run alongside the first one, so the first conviction acted like a kind of banker to cover the second. Anyway, Joey didn’t turn up to the probation office. He was also supposed to attend a Think First course in cognitive behaviour therapy but since he can’t read or write, he didn’t bother with that either.

That was all more than a year ago and now, finally, he has been brought back to Thames Magistrates Court to be punished for breaching the two orders. And things carry on going well for him.

The first time his case comes up, it is adjourned so that probation can prepare a report on him. Two weeks later, he appears again to discover that probation have failed to produce the report – but they think they have discovered a third community order, 160 hours of community punishment, which was given him for driving whilst disqualified before either of the other two orders and then somehow was lost in the system. Joey has not done a single hour of that, but probation can’t find the paperwork to prove the order was ever made. The whole thing is adjourned again.

Two more weeks later, probation finally have produced a report but it deals only with one of the first two orders; they have still failed to find the paperwork to prove the third; but now they think they have found a fourth order, yet another community punishment for a driving offence, which he also seems to have breached but for which once again they also lack the paperwork to prove anything. In the meantime, the crown prosecution service have lost his file; the print-out of his criminal record mentions only two of the four supposed court orders; and the probation officer in court apologises because she knew nothing about any of this until the end of last week and their computer system has been down for some time.

Joey sits quietly in the dock, smiling happily to another Bengali lad waiting for his case to be heard. Joey is wearing his Timberland boots and an Adidas shirt, and his hair is layered at the sides and quiffed at the front. He winks at the press bench.

The probation officer calls her boss to get instructions, the crown prosecutor finds the file, and they agree to deal with Joey only on the first two orders and leave the others because they just can’t find the paperwork. Joey says he’s not touched crack for five or six months – a claim which is best described as a brazen lie – and he apologises for being back here again. The court agrees to revoke both orders, so, having failed to comply with four of them, he is now officially freed from two of them, while the other two have simply got lost.

Now, for driving without insurance, the judge fines him £100 with an alternative of a day in custody, which he has served simply by being here in court today. So that is gone. And, for possesion of crack, he gets 21 days on a curfew from 9pm to 6am at his parents house, with an electronic tag to check his movements. He had one of those before. He broke it. So the little lord of the manor walks away happy, the beneficiary not so much of justice as of the muddle and disarray which run through the justice system.

Thames magistrates is not a bad court. It is well staffed, it has the latest technology, it is housed in a modern building, things frequently run smoothly. And yet, some cases still crash into a wall of disarray. While Joey walked, another man was accused of beating up a bus conductor. The prosecution could not proceed because they could not find his file. The defence could not proceed because they had still not been given the victim’s statement nor the detail of his injuries. And the defendant in the dock was raging because the court had issued a warrant for his arrest for failing to attend an earlier hearing: they did not know he was already in prison for another assault. With a lost file, lost evidence and a lost defendant, the case did not proceed.

When a case does not proceed, everybody’s time is wasted – lawyers, witnesses, police, the court. It is so common for trials not to proceed, that the courts commonly (53% of hearings) double or even treble book the courtroom so that they, at least, do not waste time. This, of course, has the unfortunate result that if the first listed case does proceed, all of the lawyers and witnesses in the other case or cases sit around having their time wasted instead.

But this is not just a case of wasted time. Senior prosecutors admit that every month the London courts are throwing out some 150 serious cases simply because the CPS is not ready for the committal proceedings. Official figures show that files of evidence provided by police to prosecutors are on time and up to quality in only 43% of cases; and the preparation by prosecutors is effective in only 60% of cases. This same day, a man accused of possession of heroin with intent to supply walks away because the police officer who seized his drugs marked the exhibit with exactly the same number as he marks all the drugs which he seizes and, since he left several packages lying around together in his desk drawer, the crown cannot now prove which package was seized from this man.

Senior police and ministers with great aggression have blamed delays on defence lawyers spinning out cases to raise their fees. The evidence for this is somewhere between the remote and the non-existent: legal aid fees do not reward delay, and even senior prosecutors privately rubbish the claim. However, it is clear that some defence lawyers do create delay by advising clients to stall on pleading guilty because they know there is a significant chance that the prosecution disarray will mean the case will collapse before it comes to trial.

The government’s own figures suggest that it is everybody’s fault – and that it is extremely difficult to make the clumsy machine run smoothly. New computer systems now link the different agencies, and yet still, in this court, probation can produce a pre-sentence report on a man accused of battering another driver, without knowing that he has a criminal record for violence; and still a man accused of beating up his ex-wife can ask for bail without the crown prosecutor realising that, in this same court, he has already admitted another assault for which he is due to be sentenced in a fortnight (this time, the clerk of the court noticed it in her own records.).

There are some signs of improvement. Two years ago, the CPS experimented with putting their lawyers into police stations to advise on charges. The early results were a disaster: police resented the prosecutors and asked their advice on average less than three times in a full working day; one prosecutor in a pilot scheme was consulted less than once a week. Since then, according to CPS sources, the link has improved with the result that more cases are proceeding on time and with the correct charge. The problem of prisoners arriving late at court has been eased by setting up video links to the prisons so that defendants can take part in hearings without traveling.

Other efforts have had mixed results. A drive to recruit more CPS lawyers by raising their pay had the accidental side effect of poaching legal advisers from the courts. New ‘Narey’ hearings, which were intended to streamline magistrates court hearings, have succeeded in speeding up the handling of guilty pleas but have failed to make any difference to delays in handling those who plead not guilty, who still wait an average of 15 weeks for a verdict whereas the official target is eight weeks.

And some well-intentioned initiatives have simply blown up. The CPS has tried to make sure that police officers are available for court hearings by asking them to fill out a form, MG10, to list suitable dates, but an analysis of MG10s in five forces showed that in four of the forces, officers made errors in every single form they filled in, while in the fifth, they made mistakes in 90% of them.

The point perhaps is not that the system is unreasonably inefficient, but that it is necessarily and unavoidably inefficient because the mechanics of gathering the fine detail of so many different kinds of evidence are inherently highly complex – and even more complex when they have to mesh with the demands of a rights-based trial system.

The government – caught between the evident failure of conventional law enforcement and the populist imperative for much more of it – hammers the machine to deliver better results, imposing targets, demanding inspections, creating inquiries, fiddling with the rules in criminal justice bills. They can make some difference but, as long as they fail to admit the structural limits of the system, as long as they fail to invest greater effort in more effective alternatives, they will be playing in a sideshow, and they will not stop Joey Ganguli walking back on to the streets with a smile on his face, reflecting happily: “I have no worries. I don’t have anybody on my back.”

* At his request, Joey Ganguli’s name has been changed.

See below for statistics and background

Reasons why trials fail to proceed on the scheduled date:
18% defendant fails to attend;
9% defence witnesses fail to attend;
7% defendant is not brought from custody;
3% defence lawyers not ready;
16% prosecution witnesses fail to attend;
8% police officers fail to attend;
8% prosecution lawyers not ready;
12% courtroom is double booked.

Disarray in court:
24% of prisoners are not delivered to court on time.
52% of civilian witnesses come to court and do not give evidence.
64% of prosecution witnesses come to court and do not give evidence.
12.6% of cases are discontinued by prosecution before reaching court.

Disarray after court:
44% fines are unpaid
Up to 40% of community punishments are unserved.

A London defence lawyer’s experience:
“The day to day life in a magistrates court is something like this. You
arrive at court to find that your client’s case is not listed. For some
unknown reason, it then takes about two hours (solicitor getting paid to wait) for the necessary paperwork to be sorted, so that the case can be called on. Alternatively your client in police or prison custody has not arrived because Securicor or Group 4 haven’t picked him up, or he is on a van travelling around London before he gets to the court he should be at. Last week I had a trial which was adjourned only because a young offender had not been brought from a Young Offenders Insititute in Rugby in time to get the trial going that day. The reason he was in Rugby was because the local YOI’s were full. If none of the above occurs, then you may find that the CPS does not have the case ready to commit to the crown court, often because they have not received the paper work from the police. They ask for an adjournment, and the defence oppose. In a case that is discharged, someone accused of a serious crime may go free. Not great for any victim involved. Lack of communication between CPS and the police often results in witnesses not being warned to attend trial. This again may result in an adjournment with more wasted costs/time or again the case is chucked out. These are fairly regular problems in my local courts which are based in London.”

A CPS lawyers’ experience:
“A lot of CPS lawyers make a huge effort to avoid work – it is a civil service career without the same responsibility as private lawyers. There is a vacuum in management from the middle up. Last week I was in the office and a senior lawyer was sitting at his desk, fast asleep while his manager sat just four or five feet away, taking not a blind bit of notice. No one even queries it. CPS lawyers spend a lot of time finding excuses to pass on files to somebody else. They will just dump files on somebody else’s desk with a memo sticker saying ‘you worked on this earlier’ or some other excuse. And there is a massive sickness rate, with people just not turning up for work. If you have a bad court coming up, you phone in sick and leave it to somebody else even if that does mean that witnesses and police and court staff all have a wasted morning. Our head of trials went off sick; we needed to check something with him; he was off at the Chelsea flower show. The charging pilot (a CPS lawyer works in the police station to advise on charges) is popular with some CPS lawyers because it gives them a quiet day. But any senior lawyer who goes there regards it as a complete waste of time. You can spend a whole day just processing one theft, a shoplifting and a drink drive. But all the CPS centre wants is good news stories.”