Prosecutor: I’m sorry I need an adjournment, we can’t find the exhibits
Judge: I’m not surprised.
(The same court exhibit room, East Africa in 2015 and then 2017).
As governments, donors and development partners, we spend quite a bit of time telling criminal justice authorities to “work together”. We advise and encourage them to change the ‘silo’ approach to the operation of their institutions whether that be police, prosecution, intelligence, judiciary. We know that greater cooperation improves outcomes.
However, I have noticed that much of our capacity building initiatives – in cyber-crime, human trafficking, CT, IWT, take your pick – IS being done in isolation. And in taking that silo approach, we are not supporting the sort of small but vital changes that are required to really help prosecutors and judges to have more productive day in court actually serving the interests of justice.
I came to Kenya in 2012 on a counter-terrorism ticket for the Foreign & Commonwealth Office. Being new to this work, I took advice from a SO15 officer who had been in post for some time and I quickly coordinated a counter-terrorism workshop for prosecutors and anti-terrorism police unit (ATPU). Together we ran what many would think was a successful workshop. The feedback from the delegates was excellent. We covered forensics, scenes of crime, counter terrorism strategy, the new terrorism law, we dotted several case studies based on our experiences in the UK. I even threw in some mutual legal assistance for good measure. I’ve seen many workshops run in this way, often covering similar content but contextualised according to the topic of interest such as the illegal wildlife trade (IWT), cyber-crime or sexual violence.
However, when it was over I found myself thinking – when was the last time, as a barrister, I ever sat in a classroom, for a solid week, to learn how to do my job?
The answer was actually ‘not once’.
My real learning, my ability to hone my skills as a barrister and to learn new areas of law as I went along, derived from two key elements:
- Firstly, the fantastic mentorship of senior members of my Chambers, and my excellent pupil masters Jonathan Furness QC and Paul Lewis QC.
- Second, because I was lucky enough to work in a system that actually allowed me to put my learning into practice.
To illustrate what I mean, take the following example. In 2012 and shortly after that first workshop, I paid a visit to a magistrates court in Nairobi, Kenya.
I introduced myself to a very nice police prosecutor – they’ve been phased out since then – who showed me his files for the day. He had about 20. “So far so good” I thought. That’s what my early practice days looked like when I was sent to prosecute a list at the magistrates’ court.
But that is where the similarity ended. When I nosed through his files, (with his permission I might add), I was struck by two things.
- The police were responsible for the file and the file cover they used left no room for endorsement of what had happened on the last occasion, what was going to happen on this occasion and what was supposed to happen in between. Endorsements were scribbled into any available space and it was also unclear if the accused was on bail or in custody – for that, the prosecutor told me, he’d have to check with the court file. It made reading that file extremely difficult if you wanted to know the history and who made decisions, when and why.
- There wasn’t a single written review contained within any of those files. Nothing to tell that prosecutor that the case had been reviewed in accordance with an evidential and public interest test which is the cornerstone of any prosecution power. Nothing to say the witnesses required are x y and z. Nothing to say loud and clear what the objections to bail might be and whether the case was in fact ready for court.
Instead, he had to rifle through pages of handwritten notes to find out what was what. And all the time, police officers were coming with more files, questions, bits of paper for him to look at. It was hectic.
Officers: We have an overnighter, rape, here is the file, can you stop him getting bail? We haven’t done an affidavit yet but…..could we just tell you about it?
Prosecutor: I’m a lawyer, not a bloody magician.
He had one hour to go through those files and then it was time to start. Of all the cases he had, one was a trial for robbery with violence that carries the death penalty. He stood up, turned around and called the names of two witnesses. Nobody came forward. The case was adjourned. The whole thing took less than 2 minutes.
For all we know, those witnesses were just outside the court wondering where to go.
Later, the prosecutor told me how frustrated he was with his work and how stressful it was coming to court each morning not knowing what to expect but knowing that he would have to make vital decisions without the time to take any clear instructions or find information within the files.
Five years later and a return trip to that court and literally nothing had changed.
The prosecutor had 20 files, including four trials – heroin trafficking, ivory dealing, rape of a disabled child and a theft.
Front file covers were the same.
Not a single written review.
Everything was adjourned because judges were away at a conference. Over three days and four court rooms, that translates into 240 cases. No justice there then.
I know the picture will be very different in the courts where that practice of written reviews will have been piloted. I know the picture is very different in the three courts where another initiative called ‘active case management’ has taken hold. I know how hard the prosecution service and the judiciary here in Kenya are working to transform their institutions.
But what does this tell us?
Criminal justice interventions need to be more institutional. Rather than thinking ‘this is too big for my little niche area of wildlife crime’ we need to actually address those huge challenges in a concerted and united effort. Imagine if DFID, USAID, GIZ, the UN and all those NGOs actually united to support a prosecution office in implementing and mentoring prosecutors in conducting written reviews for all crime. How many times have I heard UN agencies say ‘we can only spend this money on the prosecution, not the police’ even though the decision to charge straddles both institutions?
Imagine if we all supported a system of witness care which might take the form of training a case progression officer, or getting officers to simply record ‘dates to avoid’ for witnesses as a minimum requirement of a file? What if we together supported live link facilities in courts and key police stations to facilitate the giving of evidence without having to travel sometimes days to get to court? What about if we supported a police service to be able to scan all police files and securely make them available, in advance, to a prosecutor? And the culture of adjournments – well, that certainly required some heavy lifting from the judiciary in Kenya but if successful, the previous head of the Judicial Training Institute, Kenya said it would have the biggest singular impact upon delay in the courts. And that’s without digitisation.
We have to be conscious of the cost to the criminal justice system of all of those workshops and training seminars and make them really count. When we take prosecutors out to do yet another advocacy training course – when the chances of a prosecutor actually having time to prepare a cross examination in real life are next to none – then our outputs have to be measured by something more than ’20 people trained’.
In countries where there are no custody time limits such as in Tanzania, this is an unacceptable cost of our efforts.
It is time we moved away from the belief that ‘these issues are too wide’, leaving it to the likes of DFID or GIZ to somehow fix the bigger problems. That the NGO Space for Giants has gone so far as to address charging standards for ALL crime in its countries of focus, demonstrates that size is not a factor.
If we don’t address these bigger issues, then as was demonstrated to me in that little court in downtown Nairobi, nothing will change.