Thursday 18 October 2012 by Howard Riddle
In January, the Gazette published an article by me about the Stop Delaying Justice initiative which was introduced that month. Responses were invited. Last month, the Gazette sent me about a dozen emails from defence solicitors. They all make good points. I am grateful, particularly to those who managed to remain temperate in their comments!
For me, the main surprise was the view, expressed by several contributors, that the initiative showed a low opinion of defence solicitors. That did not occur to me when I first read the script, and I am certain that this is not the view of those involved in the preparation of materials. In fact, all the scenarios are based on real reported cases, or reflect the everyday experiences (as of a year ago) of the judiciary in magistrates' courts. From an early stage, there were discussions with experienced defence solicitors, who emphasised the problems that some of the responses also raised: legal aid; inadequate provision of papers; and lack of appropriate facilities.
When Richard Atkinson, of the Law Society's criminal law committee, asked if solicitors could attend the local training sessions, we agreed. Never has a judicially led initiative attempted to be so inclusive. There were always dangers that a programme that was not originally intended for defence lawyers could be misinterpreted. This was not a best-practice DVD. It was not intended to fully and accurately represent a court hearing, in the way that a documentary might. It was not traditional Judicial College material which always aims to reflect a balanced view, and represent all sides of the argument.
This programme was designed to convey a simple message about the changes in case management law that have occurred in the past few years. To that extent it has been successful. Almost everybody in the system is now aware of those changes, which to some at least were a disagreeable surprise. The lawyers who practise in our courts, for the defence and for the prosecution, are highly regarded. We know the very difficult circumstances in which you operate.
It is almost universally accepted that unnecessary delay and churn are not in the interests of justice, or in the interests of defence lawyers, particularly those on fixed fees. Even those contributors who were critical of Stop! mostly acknowledged this. In the comments that follow, I will attempt to cover most of the themes that were raised in the correspondence. The initiative has had some successes. There have also been some disappointments. We continue to actively look to improve case management and are grateful for your suggestions.
In my view, the main successes include:
- The very significant and radical changes to the law on case management and adjournments are now widely understood and accepted.
- Parties to criminal proceedings in magistrates' courts are now almost invariably doing their best, even in difficult circumstances, to comply with the requirement in the Criminal Procedure Rules to take a plea at the first hearing and complete the case management form.
- The time taken to process legal aid applications has dramatically improved. When this problem was identified to us by defence solicitors last summer the figures were that, nationally, 78% of legal aid applications were being processed within two days and 86% within six days (July 2011). We treated this as a priority, and I am particularly grateful to HM Courts & Tribunals Service and the Legal Services Commission for their response. By the time Stop! was implemented in January 2012, 91% of applications met the two-day target and 98% were processed within six days.
- The position with privilege and self-incrimination has been clarified, although admittedly not directly as a result of this initiative. The concerns of the profession about the implications of R (Firth) v Epping Magistrates' Court  EWHC 388 (Admin) were responded to by the decision in R v Newell  EWCA Crim 650. At paragraph 35, the president of the Queen's Bench Division said: 'In the magistrates' court where there is no PCMH and no provisions equivalent to section 11 of the CPIA unless a defence statement is given voluntarily, the position is a little different. The trial preparation form should be completed at the first hearing. It provides for the making of admissions or acknowledgements that matters are not in issue. Where admissions are made in that way they will be admissible at the trial. Where statements are made on the form which are not made under the section relating to admissions, such statements should be made without the risk that they would be used at trial as statements of the defendant, admissible in evidence against the defendant, provided the advocate follows the letter and spirit of the Criminal Procedure Rules.'
The Law Society has produced updated guidance to solicitors on the CPR. This is an essential document not only for defence solicitors but also for judges - and we considered this in some detail at our training sessions in the spring. While solicitors will prefer to consult the advice of the Society, I detect no significant difference between that advice and the law as set out in the materials with Stop!
- There is evidence that magistrates' courts are operating more efficiently. Anecdotally, there is a strong belief that the judiciary is far more robust in refusing adjournments, not just from the defence but also when the Crown has not properly prepared for trial. Indeed the only concrete example I was given of an injustice - by an after-dinner speaker - seems to have been a success story rather than a failure, in that an acquittal was secured more promptly than previously might have been the case.
On the other hand, there have been disappointments and there is more work to undertake. For example:
- In some parts of the country, the Crown is not providing the defence with sufficient paperwork to fully and properly case manage at the first hearing. We always knew that this would be a major challenge. We had meetings with the director of public prosecutions before the programme was introduced and he has been generous with his support and with genuine attempts to continue to improve the situation. Still, it remains a problem and I am confident that the Crown Prosecution Service will continue to work to improve the situation.
- Overlisting. It was always obvious that if the initiative was successful then overlisting would result in some cases being adjourned for want of court time. We did discuss this in advance with HMCTS and with the Justices Clerks Society. Unfortunately, in the early part of the year in some areas the major reason for ineffective trials was overlisting. The problem was, and remains, that a significant proportion of cases crack on the day of trial. It is unrealistic to expect this figure to drop dramatically. Unless there is some overlisting, there will be idle courts. I know that HMCTS and the Justices Clerks Society will continue to look at ways of improving the situation. You will also have noted that we have had a helpful decision of the Administrative Court about timetabling (Drinkwater v Solihull MC  EWHC 765(Admin)). The practical implications of this case are being actively considered.
- Police delay in charging. I was first made aware of this as a serious problem by a senior defence solicitor as a result of the Stop Delaying Justice initiative. This has been raised as a topic for discussion with the senior presiding judge. We are now receiving regular figures that appear to confirm that, far and away, the greatest delay in summary proceedings occurs before the first appearance at court. The reasons for this are being looked at and we are grateful that this has been brought to our attention. It will not be overlooked, but may take some time.
There are other remaining contentious issues:
- Wasted costs. Concern has been expressed at a scenario that raises the question of ordering wasted costs against a solicitor. At our training conference this year, I said: 'I hope we will continue to be very sparing in making wasted costs orders against lawyers unless they are flagrantly in breach of their duties. Our first responsibility, I believe, is to point out to advocates when their approach appears to open them to a wasted costs order.'
The importance of understanding the position was illustrated in R v SVS Solicitors  EWCA Crim 319, a Crown court case where solicitors were ordered to pay the wasted costs of a witness attending the trial from Australia. I have not heard that wasted costs orders have become common and indeed I hope that is not the case. One correspondent has checked and tells me that the delegate pack is wrong to state that a wasted costs order will be followed by a referral to the professional body. I am glad to make that correction.
- Cautions. A couple of highly respected solicitors have challenged the comments about cautions. It seems obvious to them that a caution would be more appropriate for their client than a conditional discharge (which for most purposes is not a conviction, despite the vigorous assertions of one correspondent). I would certainly consider adjourning for a caution to be administered if the lawyer can explain clearly the advantages, for example in terms of rehabilitation, of a caution over a discharge. I am happy to circulate those advantages if you would like to provide them to me. There are also disadvantages, in the form of continued exposure to the court process and the possibility of a conviction for failure to surrender if the caution is not administered. If reoffending is anticipated, or if the case requires punishment, so that a conditional discharge is inappropriate, then you would not necessarily expect a court to be sympathetic to an adjournment for a caution.
- Putting the prosecution to proof and ambush points. There has been some criticism of the scenario where a case is adjourned for the prosecution to obtain further evidence when the defence had put the Crown to proof and then raised an ambush point. This case is based on real cases (Malcolm v DPP  EWHC 363 (Admin)). A problem arose because some lawyers were marking the case management form that they were putting the prosecution to proof, when really they meant that they were not disclosing their defence. The Law Society advice confirms the case law which states that a defendant is entitled to put the prosecution to proof, but if he does so he is not able to raise a positive case at trial.
- The unfairness of taking a plea at the first hearing. It has been the law for some time that the court must ask for a plea at the first hearing (CPR 37.2). Since this rule was not always being followed, Sir Brian Leveson, when he was senior presiding judge, emphasised (in a document included in the paperwork) that 'must' means 'must'. It is not dependent on the grant of legal aid or the provision of prosecution statements, for example. Also, the specified case management form must be used. In one sense it does not matter what I think, because it is the law and the courts must follow the law. In fact, I am convinced it is fair. My principal, one of the most respected criminal defence solicitors of his time (in a firm that had specialised in criminal law since the 1920s and continues to thrive) emphasised the importance of taking instructions at the earliest possible opportunity, certainly before prosecution papers were served, so that important defence evidence could be collected before memories faded. I believe that is still the best approach.
- Bad character applications. Opinions differ, even among judges, as to whether bad character applications should be dealt with during the trial or before trial. The difficulty with making a binding decision before the trial is that it is often only in the trial process itself that the relevance of bad character can be determined. If it is relevant admissible evidence then normally it should be admitted. If a bench rules that it is not relevant, and therefore inadmissible, then I have complete confidence in that bench to pay no regard to the information they ruled inadmissible. In the early days of bad character applications there was concern that juries, magistrates and perhaps judges would be unduly influenced by knowing a defendant's previous convictions. Experience suggests that is not the case.
There is further progress to be made. In particular, we would hope for continued improvement in the early service of prosecution papers in contested cases. Some work on overlisting needs to be done. The group of judges, magistrates and justices clerks continues to meet from time to time to consider the way forward.
The lead is now being taken by the Justices Clerks Society, who after all are the real experts in this area. As for the experiment of including defence lawyers in the seminars before Stop Delaying Justice was introduced, I hope that for the most part it has been welcomed.
Howard Riddle is senior district judge and chief magistrate