By David Greene

In the course of our civil litigation practices, some of us venture from time-to-time into the criminal litigation world on behalf of existing clients who face criminal sanction for some alleged transgression.  Very often this type of work is pushed over to a firm undertaking criminal law as a full time practice.  Sometimes, however, clients additionally demand the personal attention of their solicitor to ensure some oversight as to what is happening.

For the civil litigator, the criminal world works in a strangely relaxed and sometimes bizarre fashion.  From recent experience it is not uncommon for witnesses, the accused, or even the relevant judge not to turn up, and for the matter to be routinely adjourned.  On occasion the reason for adjournment is a lack of communication between the court and the prison service – with no notice of production the prisoner is not produced.

There are, of course, more significant issues at stake in the criminal court than in the civil court: one can be looking at very serious crimes, and a most important human right – the freedom of the individual – but to this civil litigator, the way in which the criminal courts work seems vastly wasteful.  The relaxed way in which fixed dates are approached would not be tolerated in the civil courts.  As a civil practitioner we can become frustrated with the way in which the county courts work, but it is rare that they will allow repeated adjournments of cases, as appears to happen quite regularly in the criminal courts.

There are other marked differences.  First, a dip into the criminal system and the consequent discussions with barristers and clerks reminds one of the low levels of remuneration for the Junior Bar at both Magistrates and Crown Court level.  One Junior recently told me that a day at Crown Court was wasted because one of the witnesses did not attend. As the court kept the case open, she was to be paid something in the region of £48 for the wasted day’s work.

Because so many hearings do not proceed, barristers can take a relaxed view of preparation and hearings, and the advocacy is done much more on the hoof than in civil practice. This is by no means a failing of the system; it is simply a different approach.

The other thing that strikes me when comparing civil and criminal practice is the way in which barristers’ chambers are run. It becomes quite apparent that the clerks to criminal barristers have much more day-to-day control of chambers than civil clerks.  Again this is not a criticism; it is just an interesting comparison.  Certainly at the junior end, work comes in to chambers at a fairly late stage, and is distributed by the clerks whose job it is to ensure someone turns up to the hearing.