Practice and Procedure

Criminal Procedure Rules – A one-way Pendulum?

PUBLISHED November 17, 2011

When the Criminal Procedure Rules (Crim PR) were first published in 2005, few could have foreseen the fundamental changes they were to bring. The overriding objective of the rules ? to deal with criminal cases justly ? seemed uncontroversial if otiose.
No clue to the sea change to come could be derived from the bland announcement in s.69(1) of the Courts Act 2003 that ?there are to be rules of court (to be called ?Criminal Procedure Rules?) governing the practice and procedure to be followed in the criminal courts.? The provision that the overriding objective includes acquitting the innocent and convicting the guilty also seemed uncontroversial apart from the use of the word ?innocent? which imparts a moral rather than a legal character. Each participant in the conduct of a case is required to prepare and conduct the case in accordance with the overriding objective. It is this rule that has resulted in a one-way pendulum away from the traditional adversarial system. Such a dramatic shift was not foreseen even by the Lord Chief Justice. In introducing the rules in 2005 he said, ?The presumption of innocence and a robust adversarial process are essential features of English legal tradition and of the defendant?s right to a fair trial.?
As Brink and Stone put it in ?Defendants Who Do Not Ask for Bail? [1988] Crim. L.R. 152, ?Lawyers, as officers of the court, have an obligation to serve the cause of justice, but in an adversarial system, justice is served by the strongest possible arguments being put in every case.?
Since each participant (and that includes the defendant and the defendant?s legal team) is required to prepare and conduct the case in accordance with the overriding objective, defence lawyers and their clients are now required to convict the guilty. The difficulty with this rule, and indeed with the overriding objective itself, is that no one knows who is guilty and who is innocent until the court has pronounced its verdict.
The overriding objective is an objective of the rules themselves and not of the criminal justice system as a whole. Support for the proposition that the rules do not affect the substantive law is to be found in Hubner ?v- Czech Republic [2009] EWHC 2929 (Admin) wherein the requesting state sought the appellant?s extradition for an offence of making off without payment of ?20 worth of petrol. His solicitor-advocate argued that having regard to the overriding objective, it would be unjust to extradite him for such a trivial offence. In giving short shrift to his argument, Elias LJ said (at paragraph 7) ?The purpose of the Criminal Procedure Rules is to deal with what the title suggests, namely matters of procedure?[the rules] are not seeking to regulate the manner in which principles of law must be interpreted or construed.?
This approach was not followed in R ?v- Musone [2007] EWCA Crim. 1237, wherein the court excluded a late application for evidence of bad character made by one defendant against another in accordance with s.101(1)(e) Criminal Justice Act 2003 in order to prevent what it called ?an ambush? so as to further the overriding objective.
The overriding objective was used to justify the opposite conclusion in R (on the application of Robinson) ?v- Sutton Coldfield Magistrates? Court [2006] EWHC 307 (Admin) where a prosecution application to adduce evidence of bad character out of time was allowed.
The courts have tended to use the term ?ambush? in a rather loose way, so as to mean any failure to notify the prosecution of any point the defence intend to take. It is this approach that has led to an erosion of the adversarial system. In R ?v- Gleeson [2003] EWCA Crim. 3357 (a pre-Crim PR case), defence counsel did not identify the issues at the PCMH or in the defence statement. He made a successful submission of no case to answer on a single count indictment. The Court of Appeal upheld the trial judge?s decision to allow the addition of a second count to which there was a case to answer.
The requirement for advance notification of the issues was emphasised in R ?v- Penner [2010] EWCA Crim 1155 where defence counsel did not identify the issues at the PCMH. When an issue occurred to him during cross-examination, the Court of Appeal held that he should have told the judge and asked how the matter should be dealt with. Thomas LJ said (at paragraph 6) ?The Criminal Procedure Rules have been in force in this country for some time. They have abolished what is known as ?trial by ambush?. Sometimes it appears that people do not appreciate that and the duties that arise at the Plea & Case Management Hearing (PCMH).? The same judge put it in this way in R (on the application of the DPP) ?v- Chorley Justices [2006] EWHC 1795 (Admin):  ?The Criminal Procedure Rules have effected a sea change in the way in which cases should be conducted.?
The court?s tolerance of errors does not extend to failure to sign an indictment. In R ?v- Clarke and McDaid [2008] UKHL 8 the House of Lords held that a conviction based on an unsigned indictment was invalid. Bingham LJ said, ?The duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime, a certain degree of formality is not out of place.? Brown LJ said, ?The problem is easily enough avoided and will only occur if the Crown is at fault.?
In summary trials, the fault of the Crown is more likely to be tolerated. The apotheosis of such an approach is to be found in R (on the application of Payne) ?v- South Lakeland Magistrates? Court [2011] EWHC 1862 (Admin) where the Crown were unable to prove their case of exceeding the speed limit because the photographs in the possession of the prosecutor did not show the speed of the defendant?s vehicle. The Divisional Court held that the magistrates were entitled to grant an adjournment to the prosecution in order to allow them to reopen their case. The appellant?s argument was put by Pitchford LJ in this way (at paragraph 39): ?Mr Corre argues that public policy requires that the prosecution should be kept to the timetable towards speedy resolution of matters of this kind. If it became known by prosecutors that courts would readily allow adjournments in order to enable the prosecution to get its case in order, then the objective towards which the criminal justice system is directed would not be obtained.? There is no mention here of the overriding objective of the Crim PR, but reference is made to the objective of the criminal justice system as a whole. Indeed, the Crim PR are not mentioned at all in the judgment although the ratio goes further than those judgments which are based on the rules. It was not suggested that the defence solicitor at trial had in any sense ?ambushed? the prosecution. As His Lordship pointed out, ?Mr Lodge took advantage of the unilateral mistake of the prosecutor, something he was obliged to do in the best interests of his client? (at paragraph 42).
In a passage which can only give comfort to practitioners who are not learned in the law, His Lordship said (at paragraph 40) ?It is not in the public interest that cases should be decided upon the vagaries of forensic mistakes made by lawyers, provided no prejudice is done by delay or for other specific reasons. Cases should be decided on their merits.?
It is submitted that far from promoting the overriding objective, such an approach will not advance the cause of justice. Instead, it will encourage a culture of non-compliance with directions, poor preparation and casual advocacy. It is submitted that justice is best served by a strong adversarial system in which both parties are fully prepared and ready to argue their case. It is submitted that indulgence of mistakes will only lower standards. Intolerance of mistakes may be painful for the advocates concerned, but it is the only certain way to advance t
he overall objective. It is time for the pendulum to swing the other way.

This article was first published by CrimeLine and is reproduced with the kind permission of Andrew Keogh.  The author is a barrister at Redbourne Chambers.