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A view from the gallery

August 21, 2011

Yesterday I went to Westminster magistrates court to watch the case management hearing for 13 protesters. One of them is someone close to me. They were among the 145 people originally arrested outside Fortnum & Mason in March, and they’ve become such a whittled down group because a first set of defendants have already had their hearing with a trial set for November, while the bulk of those who were arrested have had their cases dropped. The campaign to drop all the cases continues, but meanwhile here we are, in the battered reception area of the second floor of the uninspired court building: the water dispenser empty, a cashpoint saying “FINES PAYMENT” ready to swallow guilty cards, tiles missing from the ceiling.

Everyone was gathered by the door of Court 5, about to go into the courtroom, when another trial gazumped this one at the last moment and gave us another half hour to spend outside: the defendants with their solicitors in a closed room, the partners and parents (there were only a handful) banked on metal seats in the waiting area.

Soon, the clerks gathered everyone up again and the defendants went in. They had to sit scattered across different areas of the courtroom like playing pieces in a complicated boardgame. Five were behind a slatted glass screen, four on a bench at the back, one alone in a raised wooden box towards the front, another couple adrift on benches. One had entered his plea earlier that day so wasn’t there.

The judge, DJ Snow (I still can’t get over that name), entered: a lean man, with dark grey hair, glasses, and expressive eyebrows and mouth that were put to good use throughout the afternoon, as he grimaced, scowled and smiled in reaction to whatever was presented to him by the three solicitors on the central bench: Mike Schwarz of the firm Bindmans, and Raj Chada of Hodge Jones & Allen, each representing different defendants, and Robert Short of the CPS.

First the prosecution were asked to explain to the judge why they have dropped 119 cases, but are still prosecuting these. The CPS man spoke of “possession and use of materials enhancing the aggravation of the offence”. What materials were these, in plain English? “Banners, cordon tape, leaflets and signs,” he explained, seeming particularly concerned about leaflets “in bundles or piles”. He said that such items suggested their owners “came to the event with some idea or intention towards promoting their cause.”

The judge’s eyebrows and mouth drew an exasperated face, and he pointed out that it isn’t criminal to have leaflets in favour of a cause. “It’s not in itself criminal,” admitted the CPS. “It’s a measure of the filter the Crown have used to sift the defendants. They had the means to play a more significant role on the day.” .

The defence solicitors talked next about letters they’ve sent to Alison Saunders (the head of the CPS in London) to drop all the charges. Some of these letters were sent many months ago and are still waiting for a response. Mike Schwarz said, “I encourage the court to encourage the crown to make a quick decision on this.” A quick decision is needed because, if the CPS decide to drop the cases, they really need to do it before yet more court time and money is spent. “The court has a role to ensure resources are used effectively,” said Mike. This role had already been played a few minutes earlier, when the pen and paper Mike offered for the defendants to write their mobile phone numbers on for the court’s records was declined by the judge in favour of the court clerk’s stationery (“I don’t want to use up your resources,” he said).

For now, the judge said he couldn’t get involved much in Saunders’ decision-making process. Raj had the last word: “It would be helpful to have a substantive response. As of last week we did not.”

There was now a moment of rich farce. The CPS had not come prepared with that most basic of prosecution tools: a charge. DJ Snow asked Robert Short what the charge against the defendants was. The next step would be for them to plead guilty or not guilty to it. “Charges will be finalised in the trial,” said Short. “At present there are variants of the charge for different defendants, so charges will be changed slightly for consistency so they all read the same.” “Do you have the model charge?” asked DJ Snow. “No,” said Robert Short. “Can’t you get it?” asked DJ Snow. “Not without physically going over to the Westminster office,” was the reply. A wave of quiet laughter passed through most of those not directly involved. “Well, can’t you get someone to email or fax it?” asked DJ Snow. Modern technology, though, did not seem to have spread to the prosecution.

They still haven’t bought Alison Saunders any stamps. “No,” said the CPS, mumbling a reason why email could not be used to fetch this rather key piece of information. But if there wasn’t a charge read out, how could the defendants enter a plea? Not guilty to what? “How far is it to your office?” asked DJ Snow. “Would you be walking?” “Yes,” said the CPS. “It’s half an hour each way.” Any decent Londoner would probably have worked out a quicker bus route. “There is likely to be a model charge,” said Robert Short, but didn’t explain why he hadn’t brought it along. To avoid an hour’s wait for everybody, it was decided that he would find the charge from the first trial’s hearing somewhere in the paperwork he’d brought with him, or at least make up a new charge for this second trial in less time than it would take for him to amble to his office and back. So the judge rose and we all went out for five minutes while Robert Short decided what to charge these bright young things for.

The charge set, it was finally read out by the clerk, a woman with magnificently hair-sprayed hair, held firmly in place somewhere circa 1957 (this is a compliment, by the way – she was like some Alfred Hitchcock heroine. It’s worth a trip to Court 5′s gallery just to admire her style.) I couldn’t copy the charge down fast enough – it was so wordy, and I was distracted by the good hair – but it was something about trespassing on land where a lawful activity was taking place, with the intended effect of intimidating persons so as to stop them engaging in that act. In other words, we all understood, they were accused of stopping people from shopping. As for ‘intimidating’, my view is that this group would only be intimidating if you were somehow scared of English roses and intellectual-looking young men with shining eyes.

The judge went through a tongue twister about how because the charge just put was slightly different from the original charge that some defendants were charged with, it would be best to mark the original charge as withdrawn and now deal with this new, single charge. “Is that alright?” he asked the defence. Then he charged forward with the next matter: the issue of abuse of process. This is in reference mainly to this video of .

The judge set out the questions that would be asked in a trial over abuse of process: “Was there any promise made? And if so, is it unfair to try them?” Mike said there were wider issues than just ‘the promise’ – “what information she was given, what happened inside and outside the store, the impact on individual defendants, whether they were present, aware of what she’d said, or heard it second-hand.”
Raj hasn’t received any evidence yet, because none of his defendants are in the first trial, so he’s already on a back foot. “So,” said the judge, “the abuse couldn’t be dealt with until after the trial as it would be based on evidential findings.”
The CPS agreed. “It could only reasonably be determined at the end of trial B.”
The logic was sound, but the result was ridiculous: the defendants need to go through a trial before the court can investigate whether an abuse of process means they should never have been arrested in the first place. Are the chicken and egg available as witnesses?

Of course, when deciding how to run a trial, there are more issues at stake than the charge and the plea: there’s the matter of whether the court has a big enough room to fit everyone into.
Westminster magistrates court won’t be a court for much longer. They’ve built a new court in Marylebone, and the trials will be held there. They just forgot to build a big enough room for this kind of case.
“We can’t accommodate having 17 defendants in this trial, for want of space,” said the judge. So the defendants will have to be split into two groups. The judge suggested alphabetical order for the split, but the CPS had other ideas: “an alternative would be to split them on the lines of their extra factors,” said Robert Short. “For example, whether they had cordon tape and placards, or leaflets.”
His nicety over different kinds of protest stationery evoked the same pained face from the judge as before.

Mike brought up the issue of one defendant from the first trial who wants to move to the second trial because he’s already booked a six month honeymoon trip to Africa, and will be travelling overland to keep his carbon footprint down (this must be an excuse the judge hasn’t heard before).

But before any decisions could be made, it was first necessary to count the number of defendants who were in the first trial. The judge listed off some surnames. “I think that’s 13,” he said. “Or is it 11?” He asked Mike to read out who he had on his list, and the judge and solicitor read their lists in sync then faltered. “Sorry, start again,” said the judge. “Smith, Jones, Jackson…” (Obviously these are not their real names.) Finally the correct number was determined, and then an estimate had to be made on how many days the second trial might last, based on what had been set aside for the first. “The first trial’s listed for, what, 10 days?” checked the judge. It turned out to be nine, spread out over three weeks in November. He mused on how the second trial was bound to be shorter, as a lot of arguments would already have been made and the evidence already presented. “Five days?” he suggested. The solicitors raised him to seven. They want plenty of time, they said, for cross- examination of police witnesses.

The solicitors and defendants went out to discuss instructions, and another case was quickly brought in, a smaller case that could be fitted into the gaps. A young man in a thick plaid shirt.
I felt uncomfortable being present at this tiny portion of his trial, but here I was in the gallery (which has only ten seats, each one precious) and the Fortnums case would be back in a matter of minutes. I kept my eyes down, not wishing to play voyeur into this man’s life. But I couldn’t help hearing what are the bare bones of his story, and I think they’re worth relating so you can see how useless our society and its systems can be at bringing someone into alignment with their own life. This man had missed a community service appointment. “When’s his next appointment?” asked the judge. “Today,” said the young man’s solicitor. “But he’s here instead.” Here for missing an appointment, and now an appointment missed because he’s here. His whole history seemed to consist of missing things, as the judge read out a series of court orders, community services, taggings and breaches, and the main thing he was also missing at the moment, which, sadly, was a current address. “Who’s the young girl he arrived here with?” asked the judge. It was his girlfriend, explained the solicitor. “Is he staying with her?” asked the judge. No, was the answer. But he did have a phone, so he could be contacted and could in theory contact others if he couldn’t make an appointment. He seemed like a person who needed help more than punishment. They were delicately discussing the tricky question of whether the man’s own solicitor believed he could be trusted to stick to another court order after he’d broken so many others, with the only alternative being custody (jail), which the judge said would lead to a series of custody orders, so you began to see how a life could tumble down into an almost permanent prison, when the Fortnums hearing was suddenly ready to resume, and the young man shuffled out, replaced by the 11 protesters. “Check your bag,” the judge told one of the girls whose seat had been temporarily occupied by the young man. “There’s been someone else in the dock.” But all her possessions were still there.

The month of March was agreed on for the trial. The first trial, for the other set of defendants, is happening in November, four months before, but the judge said this gap is needed to “give sufficient time for the outcome of the first trial to be challenged”. And so the appeals process wedges this second trial further forward to a full year after the event.

Then for the final decision on how to split this group of defendants into two trials that each fit neatly into a courtroom. “I’m not drawing a distinction between placards and cordon tape,” said the judge. Mike brought up again the pre-booked honeymoon in Africa, and in a masterstroke of organisation, the judge suggested that this man might be swapped with one of Raj’s defendants, so that Raj would get to be present during the first trial. “It would mean a re-service of all material that’s already been served on Mr. Schwarz,” said the CPS. But they must have a photocopier, as this administrative issue wasn’t seen as an obstacle. One of Raj’s defendants agreed to move to the first trial, and the swap was made. Other date clashes having been dealt with, two dates in March were set, with the defendants split by alphabet. Dates were also set for the evidence to be presented by the prosecution and for the defence to respond, and for the prosecution to respond to that, which are all scattered through the autumn. A second case management date was set, with the defendants all excused from attendance.

This immediately threw up the question of why the defendants in the first trial were having to attend their second case management hearing. In a final display of fairness, the judge withdrew that requirement. The 12 were dismissed and left the room, as the plaid-shirted man was brought back in.