In the Media

Serving Justice?

PUBLISHED May 1, 2012

An academic analysis of the effects of the "Stop Delaying Justice!? initiative

Research suggests that there are obstacles to defence compliance with the demands of case management, in terms of such practical matters as the ability and willingness of the client to assist, or the timing of legal aid decisions. While prosecutors and judges tend to see the process as administrative, defence lawyers, despite supporting the principle of co-operation between participants and acknowledging the need for an efficient criminal process, think more adversarially: thus the obligation to the court might give way to their perception of their obligation to the client (McEwan and Garland: (2012) 16.3 International Journal of Evidence and Proof).

It is partly to change this cultural understanding that the "Stop Delaying Justice!? initiative is addressed. Perhaps implicitly acknowledging that rule promulgation alone may not achieve the desired change in ethos, the programme employs direct training and also staged magistrates? courts scenarios accessed via the internet with written explanatory commentary. The materials are aimed at defence lawyers as well as the judiciary and legal advisers.

This drive to make case management more effective coincides with possibly the first use of a wasted costs order made against a solicitor?s firm (R v SVS Solicitors [2012] EWCA Crim 319). The determination in the judiciary to enforce the Criminal Procedure Rules is now unmistakeable.

Robust approach

Some of the scenarios offer a very robust approach to case management, particularly those reflecting the aim that the plea should be entered and the case fully managed at the first hearing. Advocates should be ready to go through the documentation with their client on the day, with the case, if necessary, being put back in the list rather than adjourned. Pleas should be entered irrespective of the extent of service of evidence, disclosure of unused material or the grant of legal aid. Any lack of opportunity to secure legal representation or to review prosecution evidence is insufficient reason to delay entering a plea.

The official view appears to be that defendants know whether they are guilty or not, regardless of access to legal advice. There is no acknowledgment that some suspects believe that all sexual intercourse is rape, or that taking mailbags for a train ride is inevitably theft. Although the guidance concedes that there may be exceptional cases where a defendant who pleads guilty at a later stage should not lose the credit for an early plea, these will be "rare and must be strictly justified?. The examples given, such as a defendant with no memory of the event, refer to gaps in factual, rather than legal, information. It is very clear that any paucity of detail due to the CJSSS (Criminal Justice: Simple Speedy Summary) initiative does not establish an exceptional case.

Defence difficulties

Defence advocates are under pressure to supply details of their case and to do it early. It is not a precondition that they should have received all the prosecution evidence from the CPS. Yet it is difficult to see how they can properly agree that a particular witness is not needed without seeing the statement, or agree arrest evidence or a tape transcript that is not supplied. Duty solicitors with heavy caseloads may have little time on the day in question to consider any evidence that is available, and may also doubt whether they should agree evidence unless certain of continued involvement in the case.

There may be some reservations also about the claim that, since completion of the form amounts only to early notification of what line is to be taken at trial, advance notification of the defence involves no conflict with legal professional privilege. Logic suggests that, where no information is disclosed that would not be public at that stage, the contention is correct. If, however, the defence team are uncertain at the case management phase, a defence statement would reflect only a provisional position, the gist of discussions so far, and be privileged. We are told that all summary trials are compliant with article 6 of the European Convention because of the possibility of a rehearing in the Crown Court. Given the considerable potential financial and other costs of retrial, this hardly justifies unfair proceedings in the magistrates? court. To force defendants to make effectively binding decisions before they are ready would be oppressive; neither does retrial serve the interests of efficiency.

Excluding evidence

The materials are similarly robust on the consequences should the defence fail to identify issues as required.

Courts are said to be entitled, in addition to making wasted costs orders, to refuse to allow a specific defence to be raised at trial unless notice of it was supplied in advance: in the "Leona Rogers? scenario, this is explained to an unrepresented defendant, who duly indicates her proposed defence. Writtle v DPP [2009] EWHC 236 is cited in the commentary as an authority for this, although there the prosecution had closed its case months before the defence produced a new expert report; also cited is Rochford [2010] EWCA Crim 1928, where no such course of action was advocated.

Justice is not served by excluding evidence genuinely relevant to the issue of guilt, and to see an unrepresented defendant being threatened with the prospect of it constitutes an unedifying spectacle. An evident hardening of attitudes to CPS mistakes such as failure to warn essential witnesses to attend is little consolation.

Although it might encourage greater efficiency to refuse an adjournment even if the case will therefore collapse, it also jeopardises the public interest in reaching accurate verdicts and properly punishing the guilty ? values to which the overriding objective commits all participants in criminal proceedings. The new climate holds verdict accuracy so dear that the defence must alert the Crown to its own mistakes. Therefore it should not be undermined in order to punish either side or to cut costs.

Jenny McEwan (Professor of Criminal Law, Exeter University, Editor, International Journal of Evidence and Proof)