Why do so many criminals go free?
The fear never goes away. If the attacker who put him in hospital can do it once, he can do it again. What’s to stop him? Not the justice system. That’s how Anulrajah Jeykanthan feels. That’s why he can’t sleep, why he says he’s too frightened to go to work, why he’s spent the past nine months anxiously peering over his shoulder.
The man who assaulted the former builder, a disgruntled customer, got a police caution and was allowed to stroll free.
That was seen as a proportionate punishment for allegedly hurling a steel ball at someone’s head, holding them down, making threats and wounding them badly enough to need stitches.
Anulrajah claims the attack was worse than that, but those are the bare facts – confirmed by witnesses and hospital records.
He was beaten, he was bloodied, and medics were concerned enough to want to keep him in hospital for observation.
“I thought I was going to die,” he whispers. “I honestly to God believed that.”
The attack devastated the 37-year-old father-of-three from Leicester. He still can’t come to terms with what happened next.
In his eyes, nothing happened. His attacker got a slap on the wrist from the police and was told not to do it again. There would be no day in court for either of them.
That news left scars which won’t heal.
The man who hurt Anulrajah was in touch again, allegedly pestering him for money he believes he is owed.
“For a few weeks I was like a dead body,” he says. “I sat with a knife by the door in case anybody came to kill my family.
“I’m scared to go to sleep. I’m scared to go even to the shopping centre in case I see him. I can’t get over it.”
Leicestershire police issued this statement to explain the decision not to take Anulrajah’s attacker to court.
“This was the suspect’s first offence and following careful consideration of all the available evidence, police officers issued the suspect with a caution for assault.
“The issuing of a caution in these circumstances is in line with national guidance.
“The caution will remain on record for five years along with photographs, fingerprints and any other samples taken at the time and will be taken into consideration should he re-offend.”
Sumal Fernando, the solicitor representing Anulrajah, was appalled by the decision to keep this case out of the courts.
“I find that quite shocking,” he says. “This was in my view a serious assault, something that merited a charge of ABH.”
Shocking, but hardly unusual.
Leicestershire’s justice system today stands in the dock, accused by solicitors, senior magistrates, a criminologist and a judge of failing victims of crime.
The chances of being brought before the courts and going to prison for your crimes have never been slimmer.
The system, according to the damning verdict of a judge, has become “degraded”.
Police cautions and on-the-spot fines are being used “indiscriminately”, say respected legal insiders appalled by the secret softening of our criminal justice system.
Defence solicitors, the very people whose job it is to fight the corner of those arrested, make an even more damning charge.
The guilty, they say, are effectively going free to hurt and rob time and time again.
Offenders are being let off the hook because the Crown Prosecution Service – the body responsible for charging offenders and bringing cases to court – is increasingly “unwilling” to do that.
Cases are being dropped unless they have a “cast iron” chance of success, it is claimed.
One of Leicester’s longest serving magistrates says: “The barriers have been set higher for prosecution and a few rungs of the ladder to get over it are missing.”
Official figures offer evidence to bolster that view.
The number of cases commencing in Leicester’s Magistrates’ Court in the six months from September 1, 2008, to February 28, 2009, was 63 per cent lower than the same six months the year before.
Cases handled by Loughborough Magistrates’ Court tumbled by 44 per cent during the same period.
The figures are based on “weighted caseload data” which allocates points to cases based on their complexity.
They were obtained after a Freedom of Information request by the Leicester Mercury to Her Majesty’s Court Service.
Solicitors working out of courts across the county report 30 to 40 per cent drops in their caseloads.
So-called “restorative justice” – community punishments and conditional cautioning – have taken some offenders out of the courts.
Not nearly enough, say the critics, to explain the huge drop in cases.
Superintendent Steve Harrod, head of Leicestershire police’s criminal justice department, argues that drop is due to falling crime and the system working “smarter and more efficiently than ever before”.
“Those cases which may have been charged to court in previous years and then dropped … are now being dealt with by more victim and community focused methods.
“These include Restorative Action in Neighbourhood disposals and conditional cautioning, both of which place huge emphasis on the offender carrying out reparation for their crimes along with rehabilitation to help prevent re-offending.”
The CPS now has prosecutors working out of police stations. It is their job to advise the police on gathering evidence. They make the decision on whether it is appropriate to charge someone and, if so, what the charges should be.
Kate Carty, chief crown prosecutor for the CPS, argues that this system has strengthened the justice system.
“This initiative has led to a rise in the quality and quantity of evidence compiled at an early stage of the prosecution process, leading to stronger cases being put before the court, more guilty pleas entered, and trials being listed more quickly,” she says.
“It cannot be underestimated how much this has contributed to the improved efficiency and effectiveness of the criminal justice system as a whole.”
Others take a very different view.
“I don’t believe Leicester is a more law-abiding city than it was six months ago,” says a solicitor of more than 30 years.
Wayne Hollingsworth, honorary secretary of Leicestershire Law Society, tells of widespread disquiet among its members.
The concern is that the CPS and the police are imposing so-called “summary justice” – effectively keeping cases out court because it suits them.
Why? Because the CPS and the police, like everyone else, are performance driven. Targets have to be hit.
Many lawyers are concerned corners are being cut, easy options taken, and victims let down because of it. “The establishment will try to cover it up with statistics,” says a senior magistrate, “but it’s all crap”.
Harborough MP Edward Garnier has been carrying out his own investigation.
He says letters to him from defence solicitors express surprise and concern at the light sentences their own clients are getting.
Criminologist James Treadwell, from the University of Leicester, says cases often do not make it to court unless there is a “cast-iron” chance of a conviction.
“A not guilty plea raises the prospect of such bureaucracy and cost that the CPS is simply unwilling to take it forward,” he claims.
Cautions and on-the-spot fines are ways of keeping clear-up rates high – even if the punishment does not fit the crime.
The police are under pressure, says Mr Hollingsworth. Rules mean they have to get cases almost “trial ready” before the CPS will charge. Doing that takes leg-work and a lot of form-filling – and there is no guarantee it will go anywhere.
“There has got to be a feeling among police officers… that fixed penalties and cautions are the right route to go down because it involves less paperwork,” says the lawyer.
A recorder – a part-time Crown Court judge – who spoke to the Mercury anonymously, agrees. “There is an indiscriminate use of cautions,” he says. “It is my private view they are making far too much use of cautions for quite serious offences. There is a lot of disquiet about this.
“The CPS is trying to cut costs. Word goes out to the police that they don’t want to be troubled because of the paperwork.”
A long-serving magistrate agrees.
“I believe you can now get a caution for something you would have once gone to prison for,” he says. “I really, truly believe that, and my colleagues believe that.”
On-the-spot fines were introduced by the Government as a ready remedy against anti-social behaviour and drunkenness, explains criminologist James.
They are actually being used to deal with serious assaults and other crimes that would have seen people hauled before the courts, he claims.
This doesn’t show up in the stats because the fines are issued for lesser offences than those actually committed, believes James.
“I used to work in the criminal justice system and that’s what former colleagues are telling me,” he says. “I also spend a lot of time with people actively involved in crime. They occasionally find themselves arrested and prosecuted. The (leniency) of the sentences they receive come as a surprise.
“People are being fined when they should be charged and go to trial.”
Fixed penalties are good for the police, says a solicitor. “It’s another crime solved and it’s all done and dusted fairly quickly. It adds to the stats and it hits targets.”
The CPS is also accused of “under-charging”.
Under-charging is when the prosecution cuts a deal with defence lawyers – getting their client to plead guilty to a lesser offence that carries a lesser penalty.
Deals like these have always been done – often with good reason if the evidence to support a tougher charge is shaky.
The claim now is that such deals are being done not after a hard-nosed look at the facts, but to cut costs, cut bureaucracy and keep people out of our overcrowded prisons.
“If you downgrade a robbery to a theft from a person, I will certainly tell my client to plead to it,” says a solicitor, who has asked not to be named.
“You know what the reality is. You expect him to be charged with robbery. If that happens and he’s convicted, he’s almost certainly going to prison.
“If you have an offence that’s perhaps being downgraded, you’re not going to say you’re concerned.”
People are being under-charged to get a plea, agrees the recorder.
“It is all part of the same desire to cut time, cut costs and hope for the best,” he claims. “There’s a feeling (among the police and the CPS) that what goes around comes around. If you’re under-charged this time, they’ll probably get you next time.
“I go to seminars. I can’t talk about them because of (confidentiality) rules, but I can tell you there is a lot of disquiet among the judiciary.”
Mr Garnier places the blame on Government targets.
“How do you improve clear-up rates and keep your prosecution figures up?” he asks. “You can charge fewer people or you get a conviction by making the defendant an offer he couldn’t possibly refuse.”
Magistrate Jane Hicks is chairman of the Leicestershire Bench Chairmen’s Forum, a body representing all six magistrates’ benches in Leicestershire and Rutland.
She told the Mercury in a written statement: “While it is not our role to make decisions as to who should be prosecuted, we have raised magistrates’ concerns regarding inappropriate use of cautions, fixed penalties and incidents of under-charging with the chief constable and the chief crown prosecutor.
“They have both responded positively to our concerns and investigated those individual cases we have raised.”
A magistrate working in Leicester agrees under-charging is an issue.
“Hand on heart, the answer is yes,” he says. “I’ve had lawyers say to me: ‘It was an interesting one with John Smith. Wasn’t he lucky to be charged with (the less serious offence of) ABH rather than GBH?’ It does happen.”
Nick Watson, Justices’ Clerk for Leicestershire, raised magistrates’ concerns about under-charging with the CPS six months ago.
He brought three cases to CPS boss Ms Carty. An internal investigation found that charges in two of the three were “inappropriate”. Both resulted in more serious charges being issued.
“We did a whole training session with our lawyers and guidance was sent out,” says Ms Carty. “It is not an issue that has been raised since.
“We make mistakes. Obviously cases have arisen. It is important here to stress that this is not rampant. That’s not borne out by my experience or that of my managers. Lessons were learned.”
If police officers have a problem with the CPS’ charging policy then procedures are in place to for them to raise their concerns, says Ms Carty. There is an appeals process.
“I’m not saying we’re perfect,” she says. “All cases we prosecute must pass two tests as laid out in the Code for Prosecutors. There must be enough evidence to provide a realistic prospect of conviction and it must be in the public interest to prosecute.”
The conviction rate in the magistrates’ courts is 86.3 per cent, she adds. In the crown court, it is 82.8 per cent. If the CPS really did only take “cast iron” cases to court, they would have a perfect score.
An obvious question looms large. If the justice machine is working so well, why are so many saying otherwise?
Most magistrates only sit once a month, says Ms Carty. Their perception of the system is inevitably based on a limited number of cases.
Solicitors have a different axe to grind, she argues. Less cases coming to court means less money in their pockets. Perhaps that, she suggests, colours their view.
It is a charge that brings a gasp of disbelief from Mr Fernando, principal of Sumal Creasey Solicitors.
“That is absolute nonsense,” he says. “Lawyers are professional people. We expect to discharge our duties professionally.”
The cut and thrust of legal argument matters little to Anulrajah. He just wants his life back. “I’m ashamed to say it, but I feel like crying,” he says. “I feel like a baby. My children are suffering. I can’t look after them.”
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