Practice and Procedure

Stop Delaying Justice!

PUBLISHED February 7, 2012

?Stop delaying justice!? is an important initiative of the Chief Magistrate to speed up proceedings in the magistrates courts. It will come as a shock to many defence advocates that critical questions must be answered at the first hearing.  The DVD being used to train the judiciary is available to all defence lawyers on the LCCSA website. It must be compulsory viewing

Whatever the views of the clients, no defence lawyer running their own business will object to the speedier conclusion of cases. It will significantly assist cash flow

Yet a viewing of the DVD leaves a deeply unsatisfactory feeling. It is of  a propaganda film designed to show the judiciary the duties and powers they have under the case management provisions of the Criminal Procedure Rules. As a result the parts scripted for the advocates, both prosecution and defence, are very poor. It is to be hoped that the number of defence advocates who would not enthusiastically seek to have a case dismissed for lack of a critical prosecution witness, is small indeed. The result of this scripting is that the court does at times look bullying and partial. In an adversarial system there is a need for professional but strong advocates on each side, enabling the judge again to become an impartial adjudicator

There are great strengths in the points made by the film -the clear distinction between used and unused material and an identification of the issues, properly defined, so that suitable admissions can be made and the attendance of unnecessary witnesses, by consent, avoided. 
But there are dangers too. The unnecessary entry of not guilty pleas causes concern when the Crown has not finally decided on diversion from prosecution or the level of charge or significant evidence is not yet available. In some cases this may not at the moment matter greatly. The plea can be amended in appropriate cases without great risk of losing discount. However in either way cases this will soon change. With the abolition of committal proceedings through 2012, a decision on place of trail would also have to be made. This will result in a significant number of cases going unnecessarily to the crown court.

Two other maters cause particular concern. The first is that it should become routine for an application to refer to bad character (whether by the crown or defence) to be heard by the trial court. Although the case law allows this to be done, it is not what was intended by the Rules and many magistrates dislike being put in the position of having to ?put out of their minds? information they have only recently considered.. If this is to become the practice there needs to be a duty judge at each trial centre who can consider such applications before a different tribunal conducts the trial.

The other trend to be noted on the DVD is the use of summaries of interrogations, rather than the interview itself. History warns that this is very dangerous and the defence will only agree when it is to their advantage. Prosecutors should be concerned. The long term implications need to be thought through. If the court is not to listen to the interview why will any suspect do anything other than a no comment interview (with or without a prepared statement) in a case that is going to be prosecuted? Many District Judges make clear the importance they attach to the initial explanation given in interview by the defendant. In one scenario on the DVD a defendant is told that it is enough that she raised the fact that she had a bladed article for use at work. But it is the detailed explanation that goes to the heart of the case and should be heard.

The need to speed up justice must not be allowed to destroy defence rights. The Crown must prove its case, albeit the defence must give notice of technical defects in the Crown?s case. The overriding objective of the Criminal justice System is to try cases justly and the need to convict the guilty has equal weight with the recognition of the rights of the defendant and particularly the privilege against self incrimination. Thus in  identifying the matters in issue the defence must say enough to indicate the witnesses properly required to attend but not so much as to prove the prosecution?s case or any significant part of it; and the court must recognise without threat or criticism the defence lawyer?s duties to achieve that position.

Anthony Edwards is the senior partner of leading criminal law firm TV Edwards.