Thursday 29 November 2012 by Bill Waddington
Howard Riddle, the senior district judge and chief magistrate, recently delivered an update in the Gazette on the Stop Delaying Justice! case management initiative. Judge Riddle has done an amazing job in trying to limit the adverse impact of Ministry of Justice/HM Courts and Tribunals Service policy towards the courts in order to avoid a complete meltdown.
In responding, we at the Criminal Law Solicitors Association do not in any way suggest that he has done anything but strive to keep the magistrates' courts working satisfactorily. The lack of resources he had to work with makes the achievement all the more impressive. Nothing we say is meant to be critical of him personally, but the real position needs to be outlined otherwise the debate, such as it is, will remain skewed.
Before Stop! the courts had the benefit of the Narey initiative, followed by Criminal Justice: Simple, Speedy, Summary (CJ:SSS). Both had a positive impact on the progress of cases through the magistrates' court. CJ:SSS in particular produced excellent results in terms of speeding up justice around the country.
However, both of these initiatives essentially failed because of the impossibility of fully engaging the 'justice agencies', including the courts, Crown Prosecution Service, the police and, to a lesser extent, probation and prison services. They behaved in a way that was inconsistent with those initiatives as they wanted to preserve their budgets and methods of working.
There was, in truth, no real prospect of achieving a 'joined-up' criminal justice system.
The Stop! initiative has made the same mistake and is therefore likely to fail. This is already evident as waiting lists get longer and parties have to wait too long for a trial. We have returned, to no real purpose, to the days of multiple hearings - but in the guise of administrative hearings so that the true picture does not necessarily get reported in statistics. The update from Mr Riddle confirms that the agencies have not been engaged in a meaningful way in the initiative, and they continue to fail to perform. He points out in his usual fair way the failures of the CPS, courts and the police.
What is not reported is the continuing failure of the judiciary to ensure that the CPS and the police are fully engaged; the court will not make orders that the court is not prepared to enforce. For too long, courts have taken the view that, as they will not enforce any orders that the Crown prosecutors fail to comply with, then there is no point in making the orders in the first place. If a party is made aware that they will be immune to enforcement, then why would you expect that party to do anything?
It is perfectly correct to assert that changes in the way the courts treat the defence were 'a disagreeable surprise'. The article refers to changes in the law relating to procedure and adjournments. This reform is interesting as it appears to be based on the Criminal Procedure Rules. We assume it is being said that the rules have brought about a change in the law.
The Criminal Procedure Rule Committee is a creature of statute: sections 69 and 70 of the Courts Act 2003. The task delegated to the committee was to make rules of court governing the practice and procedure to be followed in the criminal courts. The only restriction to be found in the act is that the rules are made with a view to ensuring that the criminal justice system is accessible, fair and efficient, and that they are both simple and simply expressed. There is no need to comment on whether the committee has achieved these aims.
What statute does not give to the committee is any power to change the law or make rules that conflict with primary legislation.
In order to bring about the change in culture to which the article alludes there had to be a change in the law, as many of the rights enjoyed by the defence at common law and also pursuant to section 6 of the Criminal Procedure and Investigations Act 1996 (CPIA) have (all but) disappeared. These are the bases for the assertion that the law has changed. All those changes are on the back of the Criminal Procedure Rules even though they do not have the power to change the law.
In the interests of fairness some points are made in the article to show the courts are even-handed. There is reference to there having been some refusals by courts to give adjournments to the prosecution. This is advanced as if it were a new phenomenon. Courts have made such orders in the past. Just because there have been a few such examples recently is evidence of nothing more than the continued failure of the CPS/police to engage with and fulfil their responsibilities to the criminal justice system.
It is understandable that, having identified that changing the 'culture of selfishness' to be found in the agencies is too difficult to address, there was nowhere else to go but to see what further pressure could be put on to the defence. In what way could defence solicitors and defendants in person be required to ensure that the prosecution case is as fully prepared as possible in aid of achieving conviction? It is a terrible indictment of the CPS that making the defence carry out large parts of the preparation of the case against them is seen as the way forward.
There was a time when prosecutors took pride in the fact that, given a set of prosecution papers, they knew precisely what the defence case would be and needed no prompting. If told they were put to proof they knew what they had to do and made sure it was done. They never used to shout 'ambush', as they knew they were simply criticising themselves for failing in their most basic duty.
If these skills have been lost, then perhaps the government needs to rethink on the CPS. After all, one aspect of the introduction of the CPS was to ensure that investigators had skilled lawyers to rely upon to present their cases in court. It is very clear that this initiative, more than any previous one, was based almost solely on attacking defendants and defence lawyers and forcing them to co-operate in a system that was not based on law.
Yet it is also suggested that the defence lawyers have benefited as legal aid is dealt with more quickly. This acknowledges that the Legal Services Commission and the courts service have been dilatory. In fact, unless a small, carefully selected sample is relied upon, the position has not altered save to produce misleading statistics.
What occurred with Stop! and formed the basis of the initiative was removal from defendants of the right, in the magistrates' court, not to give a defence statement. This very clear right is found in section 6 of the CIPA. It forms part of a comprehensive review of criminal procedure relating to disclosure. Part 1 of the act put disclosure to the defence of unused documentation on a statutory footing. This reduced defence access to unused material held by the Crown and in consequence other safeguards were built into the act in order to try to ensure justice could still be done between the parties.
As the CPIA was concerned with 'procedure', one would imagine that any procedural rules would be well able to reflect that procedure rather than undermine it. Section 6 of the CPIA has not been repealed - yet. Section 6 permits a defendant to serve a defence statement after receiving detailed notice of the Crown's case, and after being advised by the Crown if there is material it holds which might undermine the Crown's case or support the defendant's case. The decision to put the Crown on notice of the defence case would therefore be taken in an informed manner and usually after having taken legal advice.
Defence lawyers found themselves subjected to threats of wasted costs, and of bein
g reported to their governing bodies if they fail to comply with the Criminal Procedure Rules and in effect override their client's rights under the CPIA. It is only in this way that the courts have made some progress.
What is now encouraged in magistrates' courts is that the Crown makes inadequate disclosure on the day the defendant appears at court. Within a short period of time thereafter, the defendant (in person or through his lawyer) is required to: identify the issues in the case (in effect to advise the court and prosecutor where the Crown's case might need more work to have the best or any chance of success); identify which prosecution witnesses are required to attend at any trial (explaining why this should be permitted by the Court); give an adequate account of his defence; identify his witnesses (at least in general terms); and be able to give a time estimate for any trial.
It would usually have been impossible to make enquiry before seeing something of the Crown's case to identify defence witnesses, and let the court know what dates would need to be avoided when fixing the trial date. This means that the defendant is at some risk when the court fixes the date there and then. This system would only appear to be fair in the eyes of the hard-pressed judiciary and the prosecutor. The problem lies in the fact that there is pressure to deal with cases more quickly and the judiciary is well aware that they will not be able to make any progress if they try to encourage greater efficiencies from the Crown.
A further problem with Stop! relates to bad character and hearsay applications that tend to be dealt with on the day of any trial and sometimes at a late stage of the trial. This arises from the refusal of the CPS to comply with the relevant rules, or the failure of the court to list a hearing earlier. It is claimed that bad character applications can be better considered during the course of a trial. This takes no account of the interests of justice and the need for justice to be seen to be done. It is a convenient excuse to assist the Crown and/or the court, who could not get their act together early enough to deal with applications in a timely and proper fashion.
Too often the Crown will make an application for bad character material to go before a court when it knows it has little chance, if any, of success. If the application is to be heard on the day of, or during, the trial, then the prosecutor has achieved what he set out to do by putting some bad character in front of the bench no matter how weak the basis of their application. These issues come about not only because the Crown treats the rules as guidelines (at best), but also because the late application is more likely to be of benefit.
Judge Riddle's article sets out quite clearly that the courts have managed to overcome the safeguards that existed in the criminal justice system for the defence. The article also appears to acknowledge that there is nothing left of the defence safeguards to undermine and, as the only other possible improvement will rely upon the agencies being engaged, we cannot expect any more progress.
Bill Waddington is head of defence advocacy at Williamsons Solicitors, Hull, and chair of the CLSA