Many people will have heard about the new magistrates' court judiciary-led initiative "Stop Delaying Justice!", crafted with the support of the Senior Presiding Judge, the Justices? Clerks Society, the Magistrates? Association, the National Bench Chairmen's Forum and the Chief Magistrate. It also has the support of HMCTS, the Criminal Procedure Rules Committee and the CPS and (apparently) defence practitioners. The following material was produced by the Judicial College and is reproduced with their kind permission, and the permission of Chief Magistrate Howard Riddle.
A training pack has been produced, which you can download as a single zipped archive file from here. This is supported by a number of training videos, which you can find below.
Stop delaying justice! is an initiative led by the judiciary in the magistrates? courts, that is magistrates and district judges (magistrates? courts) working together. We have the full support of the Senior Presiding Judge, the Justices? Clerks Society, the Magistrates? Association, the National Bench Chairmen?s Forum, the Director of Public Prosecutions, Her Majesty?s Courts and Tribunals Service and the Judicial College. We have also had assistance from other groups and agencies.
The aim is that all contested trials in the magistrates? courts are fully case managed at the first hearing and disposed of at the second hearing. That has been the intention for some time. Now almost everything is in place to take this final step.
These materials have been prepared for the seminar programme that will begin in autumn 2011. We expect implementation in the courts to begin in January 2012. We are looking forward to working together cooperatively.
Goldring LJ (Senior Presiding Judge of England and Wales)
John Thornhill (Chairman, Magistrates Association)
Mike Walker (Chairman, National Bench Chairmen?s Forum)
Howard Riddle (Senior District Judge (Chief Magistrate))
Norman Draper (Chairman, Justices Clerks Society)
On 7 July 2011 the Lord Chief Justice delivered a speech entitled Summary Justice in and Out ofCourt at Drapers Hall, London. Part of that speech is set out below. It presents a challenge. Stop Delaying Justice! is the response of the judiciary in the magistrates? courts to that challenge. It is a joint initiative by the Magistrates? Association, the National Bench Chairmen's Forum, and the Senior District Judge (Chief Magistrate). It has the support of the Senior Presiding Judge, the Justices? Clerks? Society and funding from the Judicial College.
The first part of the challenge is for judges and magistrates to accept their responsibility for delay. When a trial collapses, adjourns, or cracks, then very often that could have been avoided had the case been properly case managed at the first hearing. If the wrong charge was preferred, why did we not notice it? Why did we not ensure that all agreed facts were clearly reduced to writing and only disputed evidence called? Did we tolerate the provision of a streamlined bundle that did not include key witness statements when a trial was always likely? Should we be insisting that disclosure is made at that first hearing, as often it is in fact available? Should we allow the prosecutor a few minutes to phone or text his witnesses to ensure availability?
The Lord Chief Justice said ?We need referees who will go into the changing rooms before hand, tell each side how the game will be played, warn the players who may go offside that they are being watched, and as for those who foul, that they will be sent off. And the proceedings played once.? We have already started going into the changing rooms. We have been very struck by the positive attitude of those Crown prosecutors and those defence lawyers to whom we have spoken. They are as frustrated by failures in the system as we are. We are asking the Crown Prosecution Service to have a file complying with the National File Standard (see later) at the first hearing, and a properly instructed advocate who is able to take appropriate decisions. We are telling the defence lawyers that the information we require on the case management forms must be provided. We are not asking for privileged information and are not intruding into the right not to self incriminate. We are asking the courts service to deal promptly with legal aid applications, and to allow sufficient time for the early case management hearings. We are asking that lists not be overloaded.
As for sanctions, they are simple. If the defence has complied with all its responsibilities and is fully ready for trial, but the prosecution has failed to comply with its responsibilities, then normally it would not be in the interest of justice for the Crown to be allowed an adjournment and the prosecution may fail. If the defence has not complied with its responsibilities then it can achieve no advantage from that. Ambush defences will result in adjournments and costs awards.
The response of one chief constable to our request that the police provide a full file of papers to the prosecution and therefore the court at the first hearing was interesting. He said: "We did that before at great expense of time and money. The magistrates? courts did not comply with their side of the bargain. Cases were not being properly case managed and officers were still being required to come to court unnecessarily. So we stopped and now provide streamlined papers." We, the judiciary in the magistrates? courts, must accept our responsibility for not fully implementing before now Criminal Justice, Simple, Speedy and Summary. We must do our best with the papers that are now provided.
There has been real progress, but we must do better. That is why we are running seminars across the country in the autumn and early winter. We are hoping that all magistrates who sit as chairmen, district judges, and legal advisers will attend those seminars. We want to be able to say to the police and others in the system that we will play our part, and expect them to play theirs.
For several years now the aim has been for a case to be fully case managed at the first hearing, and concluded at the second hearing. Generally trials should take place within weeks rather than months. Uncontested witnesses will not be troubled unnecessarily.
If we can make the final leap, and achieve the aim to which so much progress has already been made, then the real winner will be justice. Innocent defendants, witnesses and victims all deserve to be released from the anxiety of court proceedings as soon as possible.
"One problem in recent years is that the law, the legislation, and the procedures have led to increased cost and complexity of proceedings before the magistrates. These are, after all, intended to be courts of summary jurisdiction. Summary not in the sense of unjust or unfair, but summary in the sense of brief, without needless formality. Of course, if an individual is to be convicted of an offence, or may be sent to prison, justice must be done. Process must be fair, and proper opportunity provided for
the evidence against the defendant to be tested, and for the defendant to give evidence on his own behalf. But sometimes I wonder whether we tend to forget that although a Rolls Royce will carry us with great comfort and dignity from London to Birmingham, an efficient little Mini will do the same, at much lower cost. And linked to the same problem, although not identical with it, we live in an age which is increasingly paper orientated, and the bulk of paper can lead to confusion between activity and action. Activity is busyness, busyness in the form of directives and processes, Blackberry and email, and protocol compliance, and action, real action which has to start by overcoming the funereal, burying effect of bumph, before we arrive at the heart of the matter.
? disclosure issues have become hugely complex, and I have asked Lord Justice Gross to look closely into yet another manifestation where the problem of process has had a knock on effect on efficiency for the police and the courts. And I do however suggest that I appreciate, and am profoundly concerned about the amount of time police officers spend in courts (and I include the Crown Court here) when their evidence, in the end, is unchallenged and could be admitted, or is for any reason not required to be given orally. That is part of my responsibilities.
For these reasons we launched the national roll out of CJSSS in the magistrates? courts ? Criminal Justice, Simple, Speedy and Summary ? In February 2007. The objective was to increase efficiency and effectiveness, by reducing the number of unnecessary hearings in each case, and reducing the overall time taken for such cases to reach their conclusion. The results are not unimpressive. In March 2007 60% of cases were completed within 6 weeks of the change: that has now increased to 69%. Putting the figures slightly differently, it used to take 8.8 weeks on average from charge to completion of a case in March 2007, and this is now just over 6 weeks. More effective case management by the magistrates, encouraging them to get to grips with the issues, asking pointed questions of the prosecution and the defence is essential. The result of this process is that an average of 3.02 hearings per defendant per case in March 2007 has been reduced to 2.14 hearings. It is still not perfect. But we are making progress. And I am very grateful to Lord Justice Goldring the present Senior Presiding Judge, and Lord Justice Leveson who was Senior Presiding Judge before him, and the magistrates? courts and their clerks for achieving what has already been achieved. The advantages are obvious. One simple one is a reduction in the number of officers warned to attend court, who are thus able to continue with their ordinary duties. In Hertfordshire alone this more robust approach has on current estimates saved, I am told, between three and four thousand police attendances annually.
My ambition, publicly expressed before, is that in the interests of everyone, including the defendant, and all witnesses, not exclusively police witnesses, we need a changed attitude and understanding of the role of the court. Dealing with it superficially, the judge or magistrates are referees. But until recently the role of this particular type of referee has been to wait on the pitch until the teams turn up. Wait for as long as they wished. That is no good. We need referees who will go into the changing rooms beforehand, tell each side how the game will be played, warn the players who may go offside that they are being watched, and as for those who foul, that they will be sent off. And having prepared the teams for the kind of refereeing they will expect, to lead the teams out on to the pitch and put the ball down in the middle of the centre circle at the time when the kick-off is supposed to take place. And the proceedings played once."
The assumption underlying all the scenarios is that courts will apply the letter and spirit of the Criminal Procedure Rules (CPR), and other guidance, including case law, provided to magistrates? courts. The overriding objective of the CPR (Part 1.1.2(e)) requires courts to deal with cases efficiently and expeditiously. In almost all summary cases an early trial is likely to be a fairer trial, when the evidence is fresh and memories have not faded, than a delayed trial. The approach taken in the various scenarios is unashamedly robust. Its aim is to eliminate whatever remains of the adjournment culture.
The case management form referred to in this scene is to be found in Annex E of the Consolidated Criminal Practice Direction. Its use is made mandatory by virtue of paragraph V 56.2 of the Practice Direction. The suggestion that the form need not be completed immediately is, hopefully, not one that will be encountered often now that advocates are accustomed to the court insisting on its use whenever a not guilty plea is entered. The questioning by the district judge of the need for witnesses to attend court is in accordance with Part 1.1(2)(c) of the CPR, as respecting the interests of witnesses is part of the court?s duty to deal justly with criminal cases. Part 3.2(2) also requires the court to make an early identification of the needs of witnesses. S.9 Criminal Justice Act 1967 allows a signed witness statement, if accepted by the other party, to stand as that witness?s evidence, thus avoiding the need for that witness to give oral evidence. S.10 of the same Act allows prosecution and defence to put in writing any agreed facts, thus avoiding the need to call witnesses to prove those facts.
The prosecution?s obligation to disclose material to the defence is to be found in Part 21 of the CPR. It is limited initially to material on which it relies as part of its case. Standard directions are now 28 days following the disclosure of any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused. If the defence want disclosure of other material (such as a video tape on which the prosecution do not intend to rely and which is the prosecution say does not meet the test for disclosure of underused material) they must first serve a defence statement under s.6 Criminal Procedure and Investigations Act 1996 and make an application under s.8 of the same Act for further specific disclosure. For more details see part 3 of the Protocol, later. The defence must also give notice to the prosecution of the details of any witnesses whom they propose to call (s.6C Criminal Procedure and Investigations Act 1996). The court?s power to make directions requiring the parties to prepare for trial derives from CPR Part 3.5. The court?s duty to consider hearing evidence in the absence of an adult defendant is to be found in s.11 (1) Magistrates? Courts Act 1980 and the case management form prompts the defendant?s lawyer to remind the defendant of this.
The starting point for dealing with any application in the magistrates? court must be the overriding objective and if it is demonstrably applied correctly and fairly it is unlikely that any decision will be challengeable. It should always be borne in mind that cases must be dealt with justly, acquitting the innocent and convicting the guilty, being fair to the prosecution and the defence, recognising the rights of the defendant, respecting the interests of victims and witnesses and dealing with the case in ways which reflect the gravity of the offence, the complexity of the c
ase, the severity of the consequences to the defendant and others and bearing in mind the needs of other cases. Importantly it also means dealing with cases efficiently and expeditiously. This approach was used by the Administrative Court in the case of Persaud v DPP  EWHC 1682 (Admin).
Further, Part 3.1 of the CPR requires that cases are managed until the conclusion of the case. It is the duty of the court to actively manage the case and this includes (Part 3.2(g)) discouraging delay and avoiding unnecessary hearings. It is the duty of the parties to assist the court in its case management functions (Part 3.3).
There is a long line of cases which deal with the question of adjournments.
The foundation stone was laid in the case of R v Aberdare Justices ex parte DPP  155 JP 324, in which it was held that the decision whether or not to adjourn is a discretionary one and that the court is entitled to pay attention to the need for expedition.
In the case of Hereford Magistrates? Court ex parte Rowlands  QB 110, the court was reluctant to set any hard and fast rules but emphasised the need to examine the circumstances leading to delay, the effect on the parties and the consequences to the parties of granting or refusing the application to adjourn. The need to act fairly was stressed.
In R (ex parte Walden and Stern) v Highbury Corner Magistrates? Court  EWHC 708 the court emphasised the need for rigorous scrutiny of applications to adjourn. It overturned decisions by magistrates to grant adjournments where the inevitable inference was that the prosecution had failed to warn their witnesses to attend.
The Administrative court took the opportunity to set out matters to which the court must have regard in CPS v Picton EWHC 1108. The principles set out in the case are these:
More recently, In the case of Aravinthan Visvaratnam v Brent Magistrates' Court EWHC 3017 (Admin) Mr Justice Openshaw said:
" I have no doubt that there is a high public interest in trials taking place on the date set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so. The sooner the prosecution understand? that they cannot rely on their own serious failures properly to warn witnesses ?the sooner the efficiency in the Magistrates' Court system improves. An improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the Magistrates' Court will bring about great benefits to victims and to witnesses and huge savings in time and money."
The case of Balogun v DPP  EWHC 799 (Admin) concerned a review of an adjournment of a matter which had been listed for trial for the first time. Notwithstanding this, the Administrative Court overturned the decision to adjourn because of a failure to rigorously scrutinise all matters including the reasons that an officer?s dates to avoid had not been properly considered when fixing a trial date.
In the scenario shown on the DVD, the failure to warn the witness well in advance resulted at the very least in a significant delay in bringing the officer?s difficulties to the attention of the court. In this case, the defendant has made it clear what the issues were and would have been expecting the trial to proceed. It is unacceptable that the officer was not warned sooner, which might have resulted in an early application to vacate and a much shorter delay in bringing the case to a conclusion.
Looking at the overriding objective, taking into account all of the factors included in Part 1.2, and applying the factors set out in Picton, refusing the application for an adjournment is most consistent with dealing with this case justly.
In completing case management forms, defence lawyers are increasingly being urged to write on the forms that they cannot identify the real issues without self incrimination or breaching privilege. This is being taught at various professional training venues attended by members of the professions. In essence the question for consideration here is whether or not the defendant can rely upon these issues and put the prosecution to proof of its case only.
Firstly, as to the issue of putting the prosecution to proof, this was somewhat discredited by Leveson LJ in the case of Balogun v DPP  EWHC 799 (Admin) in which he said at paragraph 16
?For my part, however, I do not accept that the spirit or letter of the Criminal Procedure Rules is complied with by asserting that the Crown is put to "strict proof", in the absence of detail, so as to ensure precisely which witnesses should be brought to court because there are substantial or real challenges to their evidence rather than because of a desire to call witnesses to attend to see what might emerge and in the vague hope that some defence might appear or some failure might manifest itself in an unjust acquittal.?
Two things flow from this assertion. Firstly what is meant by putting the CPS to strict proof and, secondly, the fact that that does not comply with the duty under CPR Rule 3.3 putting all parties under the active duty to identify the issues for trial and assist the court in case management. In the first place, if the defence put the CPS to proof, then they may lose their right to assert which witnesses will be required. That would remain an issue for the CPS. They would be charged with deciding what evidence
they wish to call and how. They may, for example, decide not to call a witness where the defence will not accept them section 9, if they feel that they can conduct the trial without them. The defence usually do not see this as an issue until too late. There may then have to be an adjournment with wasted costs? as any adjournment to assist the defence (if granted) would be of their own causing.
In R v Gleeson  WCA 3357 Auld LJ stated that;
?A criminal trial is not a game. ..It is a search for the truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.?
These sentiments are now enshrined in Rule 1.1 as the overriding objective of the Criminal Procedure Rules.
Two recent cases have caused the defence some concerns in this matter, the issues of self incrimination and privilege. It is clear however, that the High Court is considering these issues and confirming that requiring the defence to complete a case management form, and indicate those issues upon which they dispute the prosecution case, does not offend those principles.
In R v Chorley Justices  EWHC 1795 and in Malcolm v DPP  363 (Admin) the court determined that there should no longer be an ambush culture in the preparation of cases for trial. However, that does not mean that the CPS should expect the court to allow poor prosecutorial habits to develop by failing to deal with likely issues properly at trial. See Payne v South Lakeland Magistrates? Court  EWHC 1802 (Admin).
In R v Rochford  EWHC 1928, dealing with the filing of a defence statement (section 6 CPIA 1996), the Vice President stated at paragraph 2:
?Do legal professional privilege and the defendant?s privilege against self-incrimination survive section 6a? The answer to that is yes. What the defendant is required to disclose? is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate? nor is he obliged to incriminate himself if he does not want to?.
In essence, the issue of what evidential matters are agreed and what points of law will be argued at trial is required. What is not required is how the defence will lead those issues save by identifying them and who will give evidence on them.
In the case of Firth ?v- Epping Magistrates? Court  EWHC 388 (Admin), the issue was the admissibility of the case management form to prove an essential plank in the prosecution case, presence. The court determined that the form was admissible as part of the evidence in the prosecution case and the defendant was convicted and sought a review of that decision. Toulson LJ stated at paragraphs 22 and 23:
?It does not infringe against the principle that a defendant is not required to incriminate himself for the court to require that the nature of the defence is made plain well before the trial. Of course any requirement for disclosure of the nature of the defence must be a fair requirement, in the sense that it must not be extracted from a defendant in circumstances where the prosecution have no case and are trying to adopt Star Chamber processes to try to build a case, but the rules are designed to ensure that this does not occur. So I would reject the broad proposition that any requirement that a defendant should disclose his or her hand before trial is inherently repugnant?
The Law Society of England and Wales in their Practice Note to solicitors 13 December 2009 on the 2005 Criminal Procedure Rules (now 2010 and soon 2011) state:
Keeping the court informed whilst protecting the client?s rights
It is essential to appreciate that the purpose of Rule 1.2 (1) (c) is to enable the court to control the preparation process and avoid ineffective and wasted hearings. When something goes wrong because of a failure of a defendant to co-operate with his or her solicitors the court should be aware of this and if the solicitor fails to keep the court informed, he or she risks breaching their duty to the court under the provisions of the Rules.
?Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by every means. They also owe a duty to the court and the administration of justice. ... Sometimes the performance of these duties to the court may annoy the client.?17
The concept of the solicitor apparently putting the court?s interests above those of the client has caused many solicitors to question where their duty lies. The answer is to be found in Rule 1.1(2) (c) which indicates that one of the requirements of the overriding objective is ?to recognise the rights of a defendant, particularly those under Article 6 of the ECHR European Convention on Human Rights?.
The relevant rights of a defendant in this context are:
? the presumption of innocence
? the right to silence and privilege against self-incrimination
? the ?fundamental human right?18 to legal professional privilege
This is explicitly explained in the note of the Lord Chief Justice to the Rules where it is stated:
?The presumption of innocence and a robust adversarial process are essential features of the English legal tradition and of the defendant?s right to a fair trial. The overriding objective acknowledges those rights. It must not be read as detracting from a defendant?s right to silence or from the confidentiality properly attaching to what passes between a lawyer and his client.?
The last of these rights means that a court cannot ask a solicitor to reveal what a defendant has told him or her if it is privileged, unless the defendant consents. Rather, he or she has a duty to the client not to reveal it.
However solicitors can clearly be required by the CPR, or by a direction of the court made under its case management duties arising from the CPR, to provide information that will enable the court process to proceed efficiently and expeditiously, but only if in so doing none of the defendant?s rights listed above, is encroached upon.
17 Arthur J S Hall & Co. v Simons  UKHL 38, and  1 AC 615 per Lord Hoffmann at page 686
18 As per Lord Hoffmann in Morgan Grenfell, above
Thus the professional body equally supports the position the courts are taking.
is and always has been entitled to put the prosecution to strict proof of its case. In this scenario the defendant appears initially to be indicating just that. Under questioning from the District Judge he reveals a possible defence, which has not been disclosed on the case management form. However, in the Crown Court it is now established law that a defendant is not entitled ?to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it? (per the Vice President, Hughes LJ in R v Rochford  EWCA Crim 1928). The same may well be true of summary proceedings, substituting the case management form for the defence statement.
The defendant is warned by the District Judge that he may not be able to address an issue he has not raised. In the case of Writtle v Director of Public Prosecutions EWHC 236 (Admin), the decision of the magistrates to refuse to admit the evidence of a witness at trial when the issue with which he dealt had not been raised at an earlier stage in the proceedings was upheld.
In R v Ishmael Adams  EWCA 3025 the charges alleged possession of 79 ecstasy tablets at a nightclub, with intent to supply. A witness who failed to attend the trial was a security guard who had found the drugs. On appeal it was decided that his statement was admissible because the defendant had always accepted that he was in possession of the drugs. ?It was plainly in the interests of justice for the uncontentious matter of possession to be proved by the crown by the admission of the witness statement. To hold otherwise would not be to do justice; and it would rather be to afford a defendant an escape on purely technical grounds. ?
A defendant who refuses to indicate his defence can create difficulties for the court in assessing what evidence will need to be called and which witnesses need to attend.
The court has a significant arsenal of weaponry at its disposal to deal with this situation, not least the provisions of section 114(1) (d) of the Criminal Justice Act 2003. If the court invites a hearsay application, using its powers to vary the form and time to make the application in accordance with Rule 34.5 of the Criminal Procedure Rules 2011, so as to indicate that an application to admit the evidence of all of the prosecution witnesses under section 114(1) (d) will be considered immediately, it will force the defence to indicate why the witness is required! This can truncate matters considerably and force a defendant to accept that if there is no real defence then the court will not allow witnesses to be called simply to see whether they will turn up.
This scene is based on an application for an adjournment to enable the defence to view CCTV evidence. As mentioned above, Part 21 CPR obliges the prosecution to provide initial details of the prosecution case at, or before, the beginning of the day of the first hearing. Part 21.3 defines the initial details by reference to a ?summary, statement, document or extract?. In the case of R v Calderdale Magistrates? Court  Crim L.R. 141, it was conceded by counsel for the prosecution at the hearing of the appeal that a video tape was a document for the purposes of the rules which apply to Advanced Information in either-way cases. The Divisional Court therefore ruled that the court should have granted an adjournment to allow the defendant to view the CCTV evidence. This applies only in either-way cases and in any event it is submitted that this case is not determinative of the point in view of later case law. In DPP v Croydon Magistrates? Court  EWHC 552 (Admin) a differently constituted Divisional Court cast doubt on the concession in the Calderdale case. Anthony and Berryman?s Magistrates? Courts Guide 2011 (widely used by practitioners) goes further and says this:
NB: There is a common misconception that initial details (formerly known as advance disclosure) includes CCTV (see CPR, Part 21). This was based on a generous concession made by counsel in R v Calderdale Magistrates' Court, ex p Donahue and Cutler Crim LR 141, that 'document' included a video. This concession was doubted in DPP v Croydon Magistrates' Court EWHC 552 (Admin).
CCTV footage was held not to be a document in the costs case of R v Uddin  2 Costs LR 274 in which both the Calderdale and Croydon cases were cited. It follows that a magistrates? court is entitled to refuse an adjournment for the purpose of watching CCTV evidence. For a wider consideration of the rules relating to service of prosecution evidence, see the Protocol for the Provision of Advance Information, Prosecution Evidence and of Unused Material in the Magistrates Courts, especially part 1 and part 2 (later).
The obligation on the prosecution to provide advance information in summary cases is based mainly on Part 21 of the CPR and is supplemented by guidance from the Attorney-General and the 2006 Protocol and the Adult Criminal Case Management Framework. Part 21 requires the prosecution to make available details of its case to the defence ?at, or before, the beginning of the day of the first hearing?. Those details must include a summary of the evidence and the defendant?s previous convictions. There is no specific obligation to provide more than this at the first hearing, although it is good practice and in the interests of the prosecution to do so. Paragraph 2.5 of the Framework provides:
?(a) The prosecution should serve advance information on the defence and on the court as early as possible in accordance with local CJSSS practice and at the latest by 9am on the day of the hearing. The content of advance information must comply with Crim PR 21.3(1) (a?b) and should be subject to a supervisory check before service
?(b) The defence should collect advance information promptly on the day of first hearing and take instructions so that, in compliance with the Criminal Procedure Rules, the first hearing is effective (see Objective C)
?(c) Before the court sits the prosecutor should be available at a designated time and place, subject to local agreement, for consultation with defence?.
The obligation on the police to provide appropriate documentation is now to be found in the 4th edition of the Director?s Guidance on Charging. This distinguishes between cases where a guilty plea is expected and those where a not guilty plea is expected. Here, given the defendant?s no comment interview, a not guilty plea must be expected. In such a case, the obligation on the police is to supply the CPS with key witness statements in addition to the MG5 (police report). Where the only witnesses are police officers, legible notebook entries can be provided instead of witness statements.
This scene is perhaps an extreme example of minimal disclosure by the Crown but, even in such a case, the opportunity to make pr
ogress is demonstrated.
Part 3.2 CPR imposes a duty on the court to manage cases actively ?by giving any direction appropriate to the needs of that case as early as possible?. Part 3.8 requires the court at every hearing to take a plea or indication of plea (if it has not already been done) and in his guidance in 2009 Lord Justice Leveson stressed that this was not dependent on the extent of disclosure or the grant of legal aid. Paragraph 1.4 of the Protocol states that magistrates? courts should expect to deal with both plea and venue at the first hearing. This scene deals with an application for adjournment based on delay in granting of legal aid. Experience suggests that where the lawyer chooses to withdraw (as happens in this scene) the unrepresented defendant is often well able to enter a plea. Unrepresented defendants are common in the magistrates? courts.
The issue that arises here is covered by Paragraph 1.4 of the Protocol, which states that cases can be put back in the list to enable the defence to consider any material provided. Paragraph 2.5 of the Framework (quoted in Pleas- Insufficient Evidence above) is also relevant here. In practice, it would be unusual for a defendant in this position not to have had a solicitor?s advice at the police station, where a certain amount of limited will already have taken place.
The suggestion (from the defence solicitors) that a defendant?s human rights are engaged by any failure by the prosecution to provide full disclosure before a plea is entered is unsupported by case law. The provisions relating to credit for entering a guilty plea are to be found in s.144(1) Criminal Justice Act 2003. Maximum credit is given to those who enter a guilty plea at ?the first reasonable opportunity?, according to the Sentencing Guidelines Council Guideline. The obligation to take a plea at the first hearing is discussed at Pleas- Legal Aid above. The relationship between costs and fines was examined in the case of R v Northallerton Magistrates? Court, ex parte Dove  Crim App R (S) 136 where the Divisional Court held that an order for payment of costs could not ordinarily be grossly disproportionate to a fine, although there was no requirement for an arithmetical relationship. This decision was applied in the case of Fearnley v DPP  EWHC 1393 (Admin) where the Divisional Court upheld impositions in a drink driving case of a fine of ?1,500 and costs of ?2,500. In Blow v Herefordshire District Council (17 March 2009) the court convicted the defendant of failing to prevent smoking in the public house he managed, fined him ?1000 and ordered him to pay "full prosecution costs? in the total sum of ?10,000. This decision was upheld on appeal. Orders for costs should not be made which are beyond the means of a defendant to pay. In R v Dickinson  EWCA Crim 2143 a defendant earning ?150 a week was ordered to pay a fine of ?200 and costs of ?1200, and the court took the opportunity to review the law on costs.
It is now a well established principle that a defendant can gain no advantage from ambushing the prosecution and failing to comply with his or her obligations under Part 3.3 of the Criminal Procedure Rules 2010 to assist the court in its case management duties under Part 3.2. Criminal proceedings are not a game and the Administrative Court has demonstrated time and again that it will support the Magistrates? Court in its efforts to prevent unfair advantage being gained by those who fail to comply with their statutory obligations.
In 2006, in the case of Director of Public Prosecutions vChorley Justices EWHC 1795 (Admin) the Administrative Court sent this clear signal:
?the Criminal Procedure Rules... have effected a sea change in the way in which cases should be conducted... The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure, to take any procedural step required by the rules.
The same theme was adopted in the case of Malcolm v Director of Public Prosecutions EWHC 363 (Admin). In upholding the decision of the magistrates to allow an officer to be recalled to deal with an ambush that was only raised during the defence representative?s closing speech, the magistrates had retired to consider their verdict and after coming back to announce their decision, allowed a prosecution application to admit further evidence, Stanley Burnton J (as he then was), had this to say:
?In my judgment, Miss Calder's submissions, which emphasised the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates' court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case.?
In the case ofWrittle v Director of Public Prosecutions EWHC 236 (Admin), the decision of the magistrates to refuse to admit the evidence of an expert at trial when the issue with which he dealt was not raised at an earlier stage in the proceedings was upheld. Mr. Justice Simon made the following observations:
?It seems to me that the Justices were right in saying that the evidence was inadmissible since it did not relate to an issue which had been raised at the appropriate stage. The appropriate stage would have been a reasonable time before the cross-examination of Sergeant Nestling so that he and the prosecution had an opportunity to consider it. Equally, it was in my judgment entirely open to the Justices to refuse the application as a matter of discretion?.If the late application to adduce further expert evidence had been allowed, delay would undoubtedly have occurred?.
?the present regime of case management should in general ensure that the issues in the case are identified well before a hearing. There will, of course, be cases where something occurs in the course of a trial which may properly give rise to a new issue, but this was not such a case. The days when the defence can assume that they will be able successfully to ambush the prosecution are over.?
These decisions have been endorsed again and again. (See Williams v DPP  EWHC 2354 and R v Penner  EWCA 1155 as two examples.)
Further, the Administrative Court has been at pains to point out that where there is a failure to observe the duty of the parties in identifying the real issues in the case, then the court should use its powers to impose the sanction of a costs order where appropriate. In Brett v Director of Public Prosecutions  EWHC 440 (Admin) Leveson LJ made the observation:
?Without analysing precisely why this case required no fewer than twelve hearings or where the responsibility lies (although there is the suggestion in the papers that the appellant's first solicitors positively refused to identify the issues in the case), it is abundantly clear that it is utterly unacceptable: the requirements of the Criminal Procedure Rules have been more honoured in the breach than in their observance. Both sides have a duty to the court to ensure that only the minimum time is taken in the resolution of criminal trials and, to such extent as they or either of them fail to do so, the court should not be slow to impose sanctions in the form of adverse orders for costs, if necessary against legal representatives. This also is another lesson to be learned from the case.?
The threat of a wasted costs order against a defence representative is usually enough to send a very clear warning shot across their bows. Section 19A of the Prosecution of Offences Act 1985 gives the power to the court to order wasted costs against a representative of a party (as opposed to the power to make the order against the party themselves under section 19). A wasted costs order will result in not only an order to pay the costs of the other party, but the representative has no right to be paid for the work that they have undertaken for their client during the hearing that has resulted in wasted costs. The order will also be followed by a referral to the professional body of the individual concerned and will leave a black mark permanently. It is a draconian order indeed, and it is worth pointing out to advocates who are at risk the very serious nature of the threat that they face.
An application to admit bad character is normally made in accordance with Rules 35.2 and 35.4 of the Criminal Procedure Rules 2011. These prescribe that an application must be made in a particular form by a party seeking to introduce evidence of a defendant?s bad character and where that party is the prosecutor, they must serve a notice to that effect within 28 days of the defendant entering a not guilty plea. The rules set out the timetable and format for responding to the application where the defendant objects to bad character evidence being admitted.
Rule 35.6, however, reads as follows:
?(1)The court may?
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally;
(c) dispense with a requirement for notice to introduce evidence of a defendant?s bad character.
The court is therefore perfectly entitled to allow the application to be made orally at this stage, and will want to do so where it is obvious that an application could or should be made. This ensures that the court is managing the case in accordance with its obligations under Rules 3.2(2) (a) (identifying the real issues), Rule 3.2(2) (c) (achieving certainty as to what must be done and by whom), and Rule 3.2(2) (f) (discouraging delay, dealing with as many aspects of the case as possible on the same occasion and avoiding unnecessary hearings).
Courts are often faced with the argument that a bad character application should not be dealt with by a trial bench. Not only does putting the mater in front of a trial bench reduce the number of hearings that will be needed, but almost always no prejudice will follow. If the court rules that the evidence should go in then there has been no prejudice. If the bench rules that the evidence should not be admitted it has committed itself to taking no account of the matters concerned when reaching its decision about guilt or innocence.
The issue was raised in the case of R (on the application of Robinson) v Sutton Coldfield Magistrates? Court  EWHC 307 in that it was argued that even if the court did not take the matters into account it gave the perception of unfairness for the trial bench to hear of the matters and then proceed to deal with the case (in that case an application to extend the Crown?s time to admit bad character evidence).
Mr. Justice Owen said the following:
?Where an application is made to adduce bad character evidence before a Magistrates' Court, the Justices will, of necessity, hear details of the conviction in order to rule on the application. If the application fails they will put the convictions out of mind when they hear the case. The fact that they
know the details of the previous convictions does not disqualify them from discharging their role as fact finders in the trial.?
This case demonstrates just how far case management has moved forward in a properly considered and Rule compliant way. It demonstrates the Overriding Objective in Rule 1.1 and how the parties are endeavouring to apply sound case management principles to further the said overriding objective in assisting the court to identify the issues and the witnesses that go to the issues and that are likely to assist the court reach a decision on the points in question. Thus this case demonstrates what can be achieved in reducing the timeframe for the trial as to length and as to how soon the case can be called on to trial. This is in accordance with CPR Rule 3. Indeed, the partie
s and the court have made sensible use of the case management form to clarify the issues and to ensure that possible trial issues are considered and how they will be managed, if they should arise. Drafting appropriate admissions under s.10 is central to the process of avoiding calling unnecessary witnesses and to concentrating the trial court upon the issues that will define the case.
The Court has not only identified with the parties? actual applications but applications that may be made depending upon how the evidence comes out at trial. For example the issue of bad character of the defendant in the event that he attacks the character of the Injured Party. This issue could then be flagged where appropriate, for directions to be made as to the format, content and timing of applications under the relevant rules (examples are: Rule 35 deals with bad character issues, Rule 37 deals with the conduct of trials in the magistrates? courts).
As to the issue flagged at the hearing concerning witness summonses, these are dealt with under Rule 28 of the CPR. Under Rule 28, there are set out time limits to apply for witness summonses. Although the rules envisage best practice, they also recognise that issues change and so too do witness requirements. Under Rule 28.8, the court retains the power to vary, alter or amend any time limit and the format of the application. This is a power that can be utilised as here, to prevent the parties having to do more work than is necessary, in writing when a short consideration of the real issues and the making of an oral application, assists all and does not prejudice the defendant. This mirrors the general tenor of the rules to enable a court to vary procedures where it would be just and reasonable to do so. Again, the overriding issue is fairness. One wonders why, historically, a delay has always seemed fairer?
The agreement that continuity evidence is agreed (or can be dealt with in sec 9 statements by agreement) is underutilised by many courts on the basis that the CPS must prove each and every aspect of the case. That it is true that the burden of proof is on the prosecution is not in dispute, simply a better way of doing so. The days of requiring witnesses to attend to give continuity evidence in most summary trials must surely be a thing of the past. An example of such bad practice led one court to have a plea to hearing of many months when one officer (continuity of CCTV transfers of formats) was never agreed. His diary was so full of court dates, it is a wonder he actually attended to his job. It certainly meant that once he was agreed routinely section 9, trials came on an average of 8 weeks sooner, taking into account all other witness availability.
In terms of good case management, there are always improvements that can be suggested. For example, the CPS is required under Rule 29 to make special measure applications in writing unless the court exercises discretion to vary this. Again, the MG2 on the CPS file often has all of the relevant information as to the making of an application but it is rarely, if ever, used to fund an application at the first hearing. There are many ways to improve the trial processes and this scenario demonstrates what can be achieved with goodwill on all sides. Again, in this scenario, no mention is made specifically of whether special measures may assist the witness. This would be preferable to having hearsay applications or witness summonses for a witness who is simply afraid or concerned about giving evidence in the courtroom, in front of the defendant.
Most cases that come before the courts resulting in a not guilty plea will necessitate there being case management at the first hearing to actively case manage the matter, identify the issues and appropriate witnesses per CPR 33.2 and 3.3. The case is then directed to trial on a given date with directions being made to facilitate the trial being conducted efficiently and on time. During that period, the CPS will receive a file in compliance with the National File Standard from the police, review the same and prepare the primary disclosure in accordance with section 3 of the Criminal Procedure and Investigations Act 1996 and CPR Part 22. These lay out the duties of the prosecution in disclosing their case and any material that undermines the prosecution case or is likely to assist the defence. The defence then have the right to serve a defence statement under section 6 to draw out secondary disclosure, if any.
The Prosecution will already have served upon the defence the initial details of the prosecution case under CPR Part 21. In that Part, applicable to cases that can be tried in the Magistrates? Courts; the CPS must under 21.2 serve initial disclosure (often called advance disclosure) upon the court and the defence /defendant at, or before the first hearing. That disclosure should include those matters set out in 21.3:
This is usually now served in the form of the Director?s streamlined disclosure forming the MG5 handed to the court and defence at or before the first hearing. It consists of most of those matters referred to above. Often one or more items relied upon by the CPS to prove the case is not present in the pack, such as CCTV evidence. This will not inhibit the taking of a plea but would be served with the full primary disclosure within a month of first hearing or sooner by agreement/court direction along with unused material in the form of the MG6C.
However, there are a number of cases where the initial or advanced disclosure contains all of the likely available evidence of note. This scenario is one of those cases where an immediate trial may be possible and not offend the principles of fairness and justice. Such cases involve the question of the state of mind of the accused rather than a factual matter. Here the sole issue is the accused?s dishonesty. He does not dispute ownership of the credit card nor that he would have no right to retain it without the consent of the lawful owner. He simply wishes to allege that he found it and had been en route to hand it in at the police station. The prosecution evidence is all agreed section 9 as served in the Part 21 disclosure. It is unlikely that there will be any further evidence disclosed by a full file and review and one must wonder how an adjournment is likely to further the issue for trial. The defence will call their client and he will be cross examined upon his defence, as to where he was going etc at the relevant times. The bench can assess his credibility using all of their local knowledge and the likelihood of the events.
In this scenario, the defendant is on bail and the court can accommodate the trial time now. Assuming the prosecutor is competent to conduct a summary trial (Crown Prosecutor, agent advocate or Associate Prosecutor with AP2 status), then the trial could proceed forthwith. In CPR Rule 1.1 it sets out the matters to take into account in assessing how to manage the case fairly. In Rule 1.1(e) we are ?
?deal with the case efficiently and expeditiously?.
In Rule 1.1(g) the overriding objective to deal with cases justly means
?dealing with the case in ways that take into account-
a) the gravity of the offence
b) the complexity of what is in issue
c) the severity of the consequences for the defendant and others affected, and
d) the needs of other cases?.
Here the issue is simple, the time is available to the court, the matter is not complex requiring lengthy preparation and the outcome if proved is likely not to be considered severe.
are other examples of cases for this approach. These are likely to be the ?statutory defence? cases. For example, in a case where the defendant is found to be in possession of a bladed article at the police station custody desk (following arrest for another matter) he will be charged with an offence under sec 139 Criminal Justice Act 1988. Assuming he denies the matter and is to be tried summarily, it is likely that the prosecution case will consist of the officer who arrested him and others in the custody suite. They are likely to be agreed assuming the defendant accepts physical possession. Usually, he will argue the ?good reason? or ?lawful authority? defences in sec 139(4). What then is the merit in putting the case out for weeks to a trial date when the real issue remains does this defendant have a good reason or lawful authority for carrying the item? The defendant has to satisfy the burden of raising the defence on the balance of probabilities and the CPS only then must overcome the same to the criminal standard. Why then, should the case not be called on immediately, with the defendant going into the witness box?
[One possible problem may be where the defendant is in custody at the first hearing. Under section 42 Magistrates? Courts Act 1980. Under that section, a JP shall not
?take part in trying the issue of an accused?s guilt on the summary trial of an information if, in the course of the same proceedings the justice has been informed, for the purposes of determining whether the accused shall be granted bail, that he has one or more previous convictions?.
However, that is to be repealed under Criminal Justice Act 2003 Schedule 37 from a date yet to be appointed. Furthermore, it will only be relevant in cases where the defendant pleads not guilty on first hearing in custody AND the bench has seen any previous convictions in a bail application. If bail is an agreed issue and no convictions are referred to it will not apply. In any event, surely courts can accommodate the trial by one bench dealing with the bail issue and then another bench dealing with the trial on the same day?]
The real issue is fairness of the proceedings to all parties. It is suggested that this method of calling on an immediate trial in an appropriate case, especially where the parties agree, does not offend the fairness of the proceedings under CPR Part 1 Rule 1.1 and is not a breach of the defendant?s Article 6 rights.
Unlike the position in the Crown Court, there is no specific procedure in a magistrates? court to enable fitness to plead to be determined. This scene involves the court setting the case down for a hearing under s 37(3) Mental Health Act 1983 for a fact-finding hearing. The purpose of such a hearing is to enable the court, should it find the facts proved, to make a hospital order without having convicted the defendant, after first obtaining a report pursuant to s.11 Powers of Criminal Courts (Sentencing) Act 2000. No plea need therefore be taken. This course is arguably preferable to the alternative, which would be to enter a not guilty plea and leave the defence of insanity to be determined at trial: R (Singh) v Stratford Magistrates? Court  EWHC 1582 (Admin).In this particular case the offence is summary and the court does not therefore have the option of committing the defendant for trial so that fitness to plead can be determined in the Crown Court. Of course, should the court find that the defendant did not do the acts alleged, the case would conclude. The procedure adopted by the court in this scenario avoids the need for a lengthy delay while medical reports are obtained; the defence can of course commence the process of instructing a psychiatrist pending the outcome of the fact-finding hearing. The position would be different if the defence insisted on their client?s right to a trial, with a view to a defence of insanity being established. The Divisional Court in the Stratford case made it clear that before embarking on the s.37 (3) procedure the court should invite submissions and give careful consideration to the question of whether the issue of insanity should be tried. In reaching that decision, the interests of justice were not limited to justice for the accused.
Section 139 of the Criminal Justice Act 2003 sets out:
This section has no associated Explanatory Notes
(1) A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if?
(a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and
(b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
(a) a person giving oral evidence in criminal proceedings about any matter has previously given an oral account, of which a sound recording was made, and he states in that evidence that the account represented his recollection of the matter at that time,
(b) his recollection of the matter is likely to have been significantly better at the time of the previous account than it is at the time of his oral evidence, and
(c) a transcript has been made of the sound recording,
he may, at any stage in the course of giving his evidence, refresh his memory of the matter from that transcript.
The decision to allow a witness to refresh his memory from a document made by him earlier is a matter for the court and is discretionary. Once a witness has given evidence that the condition set out in section 31(1) (a) is met, it is a matter for the court to decide whether his or her recollection is likely to have been significantly better at the time than it is now. See R v Mangena  EWCA Crim 2535 when it was said:
?Ultimately we think that the condition under section 139(1)(b) is a matter for the assessment of the judge, whatever be the witness's view of the matter, and that therefore section 139(1) is not..... prescriptive if two conditions are met by the witness himself or herself, but that it is a matter for the discretion of the judge if the two conditions are met, one of which is the judge's view that the witness's recollection of the matter was likely to have been significantly better at the time of giving his witness statement than at the time of his oral evidence.?
This followed the decision of the Court of Appeal in R v McAfee & Anor  EWCA Crim 2914 in which it was said
Rule 37.4(4)(e) of the Criminal Procedure Rules 2011 permit a party calling a witness to ask that a witness?s statement stand as his evidence in chief. The two preconditions for this to be done are that the parties agree and that the court permits this to be done.
This is a useful case management tool as it cuts down the time a witness will spend in the witness box and therefore enables the court to ensure that cases are dealt with efficiently and expeditiously and that the evidence is given in the shortest possible way (Rules 1.1(2) (e) and 3.2(1) (d).
If the court permits the evidence in chief to be given in this way then the statement must be read aloud or the statement can be summarised with the court?s permission.
In reality as it is a precondition for this approach to be adopted for both parties to agree (and in the case of multiple defendants for all parties to agree), there is very little chance of a subsequent challenge to a decision to allow the evidence to be given in this way.
However, whilst some exhibits will be seen by members of the public in court that are clearly visible such as weapons or CCTV that is played in court, the public do not have the right to demand to see any exhibits or documents placed before the court.See the cases ofR v Waterfield 1 WLR 711 and R (on the application of Guardian News) v City of Westminster Magistrates? Court  EWHC 3376 (Admin).
At every hearing (however early):
1It is important to note that all participants in criminal cases, including Magistrates, District Judges, and Justices? Clerks must follow and apply the Criminal Procedure Rules. The Rules are not mere guidance. Compliance is compulsory. The word ?must? in the Rules means must.
2The expression ?court? includes Magistrates, District Judges, and Justices? Clerks exercising judicial powers [Crim PR 2.2(1)].
3Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified.
The key to effective case management is the early identification by the court of the relevant disputed issues [Crim PR 3.2(2) (a)]. From the start, the parties must identify those issues and tell the court what they are [Crim PR 3.3(a)]. If the parties do not tell the court, the court must require them to do so.
Before the trial begins, the court must establish, with the active assistance of the parties, what disputed issues they intend to explore [Crim PR 3.10(a)].
The court may require the parties to provide:
During the trial the court must ensure that the ?live? evidence, questions
, and submissions are strictly directed to the relevant disputed issues.
For a full version of the Rules, see here:
Lord Justice Leveson
Senior Presiding Judge for England and Wales
Fairness is at the heart of the case management system that has developed over the past decade, since the Auld Report.
In most summary cases, an early trial is almost always fairer than a delayed or adjourned trial. The most obvious beneficiary is the innocent defendant. Anyone who has been wrongly accused knows how difficult it is to get on with life until your name has been cleared. Awaiting trial is hugely stressful. It is bad enough if you are on bail, subject to sanction if you fail to attend court as required. There may be bail restrictions on your liberty, sometimes interfering with family life. There is cost. There is fear of consequences. Even for the guilty defendant the fear of consequences and punishment can be worse than the reality.
Then there are witnesses. Almost nobody likes giving evidence. Most ordinary people dread it. Even if your evidence is simple or formal, most people would prefer not to attend court. It is unfair for witnesses to have to wait many weeks or months before giving evidence. It is even worse to attend court and be sent away to come back another day. It is an unnecessary worry for a witness to attend court, only to find his/her evidence is not challenged and could have been agreed. The court process owes it to people not to trouble them at all if their evidence is not in dispute; to hear their evidence while it is still fresh in the memory; not to wait longer than necessary to give evidence; and if presence at trial is essential then to help them give their evidence in the best way possible.
But as important to fairness to innocent defendant and anxious witnesses is justice itself. The court is more likely to reach a true verdict when it has heard evidence that is fresh. It is, quite simply, easier to determine where the truth lies if evidence is given before time erodes accurate memory. An early hearing is arguably a more important aspect to a fair trial than any other, save of course an independent and impartial tribunal.
If trials concentrate only on what is in dispute they are shorter. This means they can be heard sooner. This is why a rigorous case management process that the first hearing is essential.
The Criminal Procedure Rules require a defendant to assist the court in its case management functions by, among other things, properly completing the authorised case management form. The principles of legal professional privilege and the defendant's privilege against self incrimination have not been taken away. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of these principles. Complying with the rules requires a defendant to disclose what is going to happen at the trial, not confidential discussions with his advocate. Failure to comply should not be condoned by the court.
Note: a more detailed list of propositions on this topic is available from the Judicial College at email@example.com
The Law Society has issued a practice note (20 January 2011) on advising a client on plea in the absence of full disclosure. That advice can be interpreted as suggesting that a defendant?s credit for a late guilty plea can be preserved by informing the court ?about the predicament faced by the lawyer due to lack of disclosure?.
"If you advise the client to enter a not guilty plea, or to enter no plea, to protect his or her position due to the lack of information, you should ask the court to make a note of the circumstances and the reasons for pleading so.
To help your clients retain the maximum credit for any subsequent guilty plea you should both:
advise your client about the position;
inform the court of the predicament you face due to the lack of disclosure."
There can sometimes be a misunderstanding about law on credit for an early plea of guilty. Maximum credit for a plea of guilty will be given where that plea is entered at the first reasonable opportunity. The meaning of "first reasonable opportunity" is considered in Annex 1 to the Guideline (SGC Reduction in Sentence for a Guilty Plea).
?2. The key principle is that the purpose of giving a reduction is to recognise the benefits that come from a guilty plea both for those directly involved in the case in question but also to enable courts more quickly to deal with other outstanding cases ...
3. (a)The first reasonable opportunity may be the first time that a defendant appears before the court and has an opportunity to plead guilty;
(b) but the court may consider that it would be reasonable to have expected an indication of willingness even earlier, perhaps whilst under interview;
Note: For (a) and (b) to apply, the Court will need to be satisfied that the defendant (and any legal adviser) would have had sufficient information about the allegations.?
Earlier in the guideline is a statement of purpose which says: "A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation.
It is recognised that there will be cases where a defendant does not know whether he is guilty or not guilty of the offence charged. An example given by the Sentencing Advisory Panel was of a man charged with dishonest handling who believes the goods were stolen, but does not know. A more common example might be the defendant who cannot remember the events complained of, perhaps because of drink or drugs. In such cases the defendant would not normally lose credit for asking for sufficient evidence to satisfy himself that he is indeed guilty.
A defendant is in any case entitled to put the Crown to proof. Logically this requires a trial. Sometimes a defendant wants to assess the strength of the evidence before pleading guilty. It must be remembered that there is no entitlement to see all the evidence (as opposed to a summary) before entering a plea or indeed until shortly before trial (See CPR 21 and Protocol above). So although there is nothing to stop a defendant pleading not guilty and then changing his plea when he sees the full extent of the prosecution case, a defendant who waits until full disclosure is made will not normally gain the same credit as somebody who entered the plea of guilty as soon as practicable. Moreover adjourning to see the full prosecution evidence will normally add to the costs asked for against the defence.
By cooperating with the process, the defendant shortens the time needed for trial, which normally means an earlier trial and therefore an earlier acquittal for the innocent defendant. Focusing on the real issues in the case normally assists the innocent defendant. Hearing evidence when it is fresh normally helps the court to reach the right verdict. Where there is an irreparable weakness in the prosecution case, then pointing this out can lead to either the withdrawal of the allegation or to an early or immediate trial on the papers resulting in acquittal. Where the fault can be remedied, but has not been pointed out by the defence as an issue, then it is likely to delay matters when the case is adjourned for the necessary evidence (see below).
1. [Richards LJ in CPS v Norwich para11.] ?The case management process, especially following the introduction of the Criminal Procedure Rules, requires a greater level of cooperation between the parties than was once the case. The real issues are required to be identified at an early stage. The rules discourage a defendant from sitting on his hands in order to obtain a procedural advantage. If he does seek to gain advantage from earlier economies of participation...the court should act to correct it, not condone it.?
If a defendant fails to comply with the case management procedure, and in particular fails to identify in advance an issue at the trial, then he will not only gain no advantage from that stance, but the case is likely to be adjourned and the increased costs would normally be paid by an unsuccessful defendant.
It is a central tenet of this initiative that it is normally more unjust to adjourn a trial, particularly on the day of trial, than to proceed. An innocent defendant is entitled to an early acquittal. Anxious witnesses and victims are entitled to be heard without delay. The best route to a fair verdict is to hear the evidence when fresh.
However, we are not saying that an adjournment should never be granted. It is always essential to consider all factors when considering whether it is in the interests of justice to adjourn. One factor that we are highlighting is that the adjournment culture needs to be broken. It is in the interests of the system as a whole that no party attends court on the day of trial thinking that an application for an adjournment is likely to succeed. There may come a time when applications to adjourn are rare and each individual application can be considered on its own, without considering the wider implications for the system of justice. Even before then there are special situations where the court will want to consider the position with particular care.
It is now the law that the trial should take place in the absence of the defendant unless it appears to the court to be contrary to the interests of justice to do so (MCA 1980, s11 (1) (b). It is submitted that it will rarely be in the interests of justice to adjourn when there is no solid explanation for the defendant's absence, and there is no other reason for granting an adjournment. Where a reason is forthcoming, it should normally be a simple matter to check that reason before starting the trial. If the defendant is indeed absent involuntarily, for example because he is detained at a prison or police station, or is in hospital, then it would not normally be in the interests of justice to proceed. Remember, nevertheless, that if a trial proceeds in absence, there may be an acquittal. An adjournment in those circumstances would have been in nobody's interest. Remember also that if a defendant is convicted in absence, and it later turns out that his absence was involuntary in the sense that he was prevented from attending, then it will normally be in the interests of justice to reopen the case under section 142, and fix another trial. Remember finally that if a defendant is convicted in his absence, then there is a right to a retrial in the Crown Court.
Case law on this subject has normally turned on specific facts, and will provide little guidance to your case. Each case must be considered on its own facts and merits and in the interests of justice.
When the defence apply for an adjournment because a defence witness has not attended, all factors must be considered but the following are likely to be particularly relevant.
Summary trial is almost invariably article 6 compliant. That is because there is an absolute right to a retrial in the Crown court if convicted in a magistrates? court. Naturally we all want a defendant to have a completely fair trial. We will do our best in all circumstances to ensure that. We would all prefer both prosecution and defence to be fully ready for trial on the first occasion a trial is listed. However, where that does not happen, it will often be more unfair to adjourn than to continue.
This has been examined in the case law, for example in Balogan. If the prosecution is at fault this is an important factor that weighs against granting an adjournment. As always, all factors must be taken into account. However in many everyday cases the prosecution may be required to proceed, even if the missing witness is central to their case.
This happens. Sometimes there is a medical emergency. Sometimes there are appalling weather conditions. Sometimes there are unavoidable transport failures. Where the prosecution is not at fault, this is a factor in favour of an adjournment. Even so, all factors must be taken into account. There is an injustice to an innocent defendant in further delay. The court will want to consider whether it can proceed without the witness. Perhaps it is a corroborating officer or someone who is otherwise not central to the case. If the witness is not really disputed, then the evidence can be admitted. It may be possible to take the witness out of turn, for example concluding all the available evidence today, and adjourning until tomorrow to hear one further witness. Remember it is a matter for the Crown whether they wish to proceed without a witness. The defence cannot have it both ways. They cannot say "we want the witness to cross examine but we are neverthele
ss opposed to an adjournment".
Again, the fact that the Crown is not at fault is a factor, but not the determining factor. In some cases the Crown is able to proceed without the witness, and that would normally be the best course. However in some cases the witness is central to the prosecution case, for example a victim. Here it may be wise to allow time for investigation to see what has happened to the witness. Perhaps there has been a medical emergency on the way to court. Despite the need for progress, some leeway must be given for those enquiries to be made.
However, should we examine our practice with witness summonses? It is notorious in domestic violence cases that the complainant does not attend court. Similarly when a key witness has many convictions, and dislikes coming to court. At the first hearing the question of a witness summons should be raised, by the court if not by the prosecution. In many domestic violence cases it is in the interests of justice for a witness summons to be issued and served. Many victims find it easier to explain to family that they had no choice but to attend court. It removes the idea that they are responsible for the prosecution: they are simply a witness. However, one size does not fit all and there may be occasions where a domestic violence complainant would be deeply distressed to receive a witness summons. There is nothing to stop the court issuing the summons in the interests of justice, and leaving it to the good sense and judgement of the officer in the case whether to serve the summons. However if the summons is not served, and the complainant does not attend and does not give a reason, and then we suggest the court should be slow to adjourn. Similarly, if the prosecution do not apply for a witness summons in circumstances where it is foreseeable that a witness might not attend, then that will be a factor against granting an adjournment.
There will always be occasions when it is appropriate to grant an adjournment, even if the party requesting it is at fault, and even where an adjournment causes delay and/or distress to those who have attended court. For example we sometimes deal with very serious or sensitive cases, such as motoring cases where death or serious injury has occurred. There may be particularly vulnerable victims or a particularly strong community interest in a particular trial taking place. To refuse an adjournment where the inevitable result would be the collapse of such a trial may well be unjust.
The real question to ask is how the case came to the day of trial when it was not fully ready. The court must take its own share of the blame for this. It is important to fully case manage at the first hearing. If at the case management hearing it is clear that the court is dealing with a particularly sensitive case that is nevertheless not trial ready, then further steps will need to be taken to ensure that it is made ready. Perhaps the case progression officer (where there is one) or a legal adviser or even the bench needs to assume responsibility for following through to make sure both sides are fully trial ready. With limited resources it may not be possible or desirable to keep every case under review; routine cases will need to be monitored by the parties themselves.
It is suggested that in every case where an adjournment is granted then there should be a review to see whether the adjournment was necessary. If it was then the court should look at its own process to see whether it could have managed the case better and to pass on the lessons learned to the bench who conducted the initial case management.
We are aware that this practice exists in some parts of the country, and we do not want to interfere with a practice that works well. However we have considered and rejected this model. First, it in effect wastes a hearing, as the parties are used to nothing happening at the first appearance. Secondly, it inevitably builds in delay. Thirdly, it is usually requires the Crown to produce evidence for matters that are not in fact in dispute.
In our view cases should be fully case managed at the first hearing. Sometimes, admittedly rarely, it is possible to go ahead with a short trial at that first hearing (normally where the prosecution facts are not in dispute). Sometimes it is possible to fix a very early trial, for example in domestic violence cases where only one witness is needed. Sometimes the court identifies vulnerable victims, such as children, that need special case management from the beginning. In most cases witnesses and the court process benefit from an early trial date being provided, and all witnesses warned at an early stage.
Is there really any advantage in this? Admittedly a caution rather than a conviction will be recorded. However if it is a comparatively minor first offence, then the court is likely to dispose of the case by way of a discharge anyway. And if the case is too serious for a discharge, why is it in the interests of justice to adjourn for a caution? Remember that any adjournment delays proceedings. Sometimes a case is continually adjourned for a caution that, for whatever reason, it is not administered. The defendant then has prolonged exposure to the criminal justice process when the case could have been dealt with at the first hearing. Moreover, he or she will often be on bail, with the risks that brings if the defendant fails to attend a subsequent hearing.
This protocol was prepared by the office of the then Senior Presiding Judge for initial use in pilots in 2006. Although the protocol was not formally adopted, it is included here as an invaluable summary of the law on the provision of prosecution material. As the introduction says, this topic is important but widely misunderstood. Some key points are:
Essential Case Management: Applying the Criminal Procedure Rules (attached)
Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the Magistrates? Courts(attached)