National Trial Backlog Initiative – Discussion Paper

[At a meeting convened by Mr Justice Baker on the 15th January 2015 it was agreed, with the authority of the Lord Chief Justice, to develop plans to deal with trial backlogs nationally. 
This is a revised version of a discussion paper prepared for an initial meeting to discuss the proposed initiative in London. It is stressed that this remains a discussion paper, although the points below reflect agreement of the London group. It is hoped to update arrangements from time to time. In the meantime the paper is provided to inform discussions as the programme is developed for delivery across the country.]

A.	Matters for decision

1.	Why? The sole purpose of this initiative is to reduce trial delay. Any other benefits, such as training and improved relationships, are desirable but ancillary.

2.	Who decides? The national group is offering additional prosecutors and additional judges. The JBG will decide whether to accept the offer and if so which courtrooms will be made available. The ultimate decision for deciding the tribunal is with the Justices’ Clerk (after consultation with CMO and Bench Chairman). The ultimate decision for provision of prosecutors is with the CPS. The ultimate decision on provision of legal advisers and court associates is with the Justices’ Clerks. The Delivery Director/ Head of Crime will determine the provision of ushers/list callers, resulting officers and the necessary facilities.

3.	Which courts? While there is room for some local variation, this is in essence a national scheme, and local areas will need to decide whether to accept or refuse the package. In particular we wish to use the team to spread good practice from one area to another. We believe three or four additional courtrooms sitting at the same place for at least a fortnight is necessary to use limited extra resources effectively. It is agreed that we should start in London with 3 courts sitting in East London at Stratford Magistrates Court and 3 in South London at Greenwich Magistrates Court. The work will be case managed in the first instance at Camberwell Green and Croydon for Greenwich and Thames and Stratford for Stratford. The JBG, on the advice of the JC, is deciding which courtrooms should be made available.

4.	When? The timetable is as follows for April to July 2015:
•	London East & London South will run from 13th April for 6 weeks
•	Kent will run from the 1st June for 4 weeks
•	Manchester will run from the 1st June for 4 weeks
•	Thames Valley will run from 29th June for 3 weeks (in two locations)
•	Surrey & Sussex will run from 6th July for 4 weeks 

5.	What cases? The suggestion has been made, and I believe generally accepted, that only comparatively short and comparatively straightforward CPS cases should be listed in these additional courts. It is expected that many of those will be domestic violence cases, but for the sake of all involved there should be a variety of straightforward work/ core business. Custody cases are fine but cases involving especially vulnerable witnesses (such as children with intermediaries) should be avoided. Generally there should be only one defendant in each case. Complicated legal arguments to be avoided.

6.	Who case manages? In many parts of the country there are specialist domestic violence courts. It is not anticipated that the work of those courts will be disrupted. They can feed contested trials into the backlog trial courts. It is expected that all cases will be fully case managed, including special measures for screens etc and including any bad character application. The decision on whether an additional court can be made available for this purpose is for the JBG. The decision on who sits in these courts is for the JC. 

7.	What prosecutors? Although the decision as to which individual prosecutors will be provided is for CPS, there is a requirement that the same prosecutor is available throughout each two week stint. Moreover the team is expected to include at least one (and preferably more) prosecutor who can make decisions about fundamental matters concerning the case, such as offering no evidence or an alternative charge. Moreover the expectation is that each prosecutor will have administrative support to continue to make enquiries while the prosecutor is in court. The CPS will be expected to provide contact details so that the court and the defence can discuss effective case management outside court hearings. An active email address is required for each case.

8.	Which judges/magistrates? Although the ultimate decision is with the Justices’ Clerk, the expectation is that each bench shall be available to sit together as a team for at least two weeks at a time, coterminous with the same prosecutor and the same legal adviser. The national team will make available at least two and on request three judges during the time of the initiative. It is expected that at least one local judge will sit on the initiative, with a judge provided by CMO to backfill the local judge’s other work. 

9.	What legal advisers/ushers/administrators? Although this is a matter for the JC/ Delivery Director, the expectation is that each court will have at least one member of staff permanently with the judge, whether a legal adviser, court associate or note taker/usher. It may be, if resources are stretched, that each court does not have its own usher, but one experienced and efficient list caller may suffice. A case progression officer should be named and email details provided to the defence and prosecution.

10.	What information does the trial bench have in advance? The trial bench should have and should have read the case management form, any material admitted by way of bad character, any agreed witness statements, any agreed record of interview. A properly prepared opening note would be most helpful.  The opening note is not only valuable to ensure that the hearing concentrates only on disputed matters. It will also assist the prosecutor if a case is moved from one court to another. It should mean less preparation time. We need to consider whether this is practicable and when is the best time for preparation.

11.	How many cases are to be listed? It is anticipated that London will adopt a “Double Listing Model” with up to 6 hours of DV trials and 6 hours of core business trials listed in each court. One advantage of at least 3 courts working together is that there can be compensation for over- listing or cracked trials. Inevitably cases will be transferred from one court to another. It would be helpful if the legal adviser together with any court associates meets with the benches before the morning and afternoon sessions to transfer work from one court to another on such information as is available at the time. 

12.	Who takes notes? The legal adviser will take notes for the magistrates, in addition to any notes the bench keeps itself. Otherwise the judge will keep his or her own notes. There is an expectation that a proper contemporaneous note be made of any comments made by the judge by way of ruling or by way of discussion with the advocates or defence. 

13.	What facilities? Ideally there will be a single common room where the judges and magistrates involved in the initiative can meet at the beginning and end of each day. Wherever possible there should also be individual rooms for private deliberation, making of notes for judgment and so on. Stones, Blackstones, Wilkinson and the supplements including sentencing guidelines, CPR and practice directions are important. In the courtroom the equipment should be tested in advance to ensure that it can accommodate CCTV, tape recordings and body camera evidence (where applicable). Similarly screens should be immediately available where required. 

14.	How to engage and inform the defence? Below I have drafted a potential notice to local defence advocates. It will be seen that a number of points have been made to assist them. If agreed, then these points must obviously be addressed by the court and the prosecution. It is suggested that a meeting can be offered before, and possibly after, the initiative. Obviously no individual case can be discussed at these meetings. The JCs are arranging meetings at Camberwell Green and Stratford probably in late February/ early March. 

15.	How to engage probation/witness support/police? It is obviously essential that these organisations receive as much notice of the initiative as possible, and be asked to provide appropriate support. A letter has been sent to the London Criminal Justice Board so that these organisations can be properly informed. We are asking for a lead from each group with whom we can discuss local arrangements. 

16.	What expectations do we have of CPS? The case management hearing requires an experienced lawyer able to make robust decisions at that hearing. Ideally there will be administrative support and somebody from the police. In domestic violence cases there are often other key administrative support available. The expectation is that disclosure and IDPC will be served at or before the hearing (before under TSJ). We would expect witnesses to be warned by text or by phone at the first hearing (and warned to attend at least 30 minutes before the hearing, to speak to the prosecutor). There needs to be a check of proper witness warning, to the right time and place. Bad character and hearsay applications and notice of inference from silence should also be made at that hearing. The Crown is asked to have an active and constantly monitored contact email address so that defence and court can make meaningful contact between the first hearing and the trial. CPS lawyers should be fully familiar with disclosure obligations and how to respond to applications for an adjournment, including access to relevant case law. 

17.	What do we expect from the bench? The case must of course be fully case managed at the first hearing, and the bench will need to take the initiative with issuing witness summonses in domestic violence and other cases. Sentence indications should be given where asked for, or wherever appropriate. Similarly, the bench must be fully familiar with the law on trial in absence; disclosure; special measures; Drinkwater and timetabling; simple bad character; simple hearsay; the law on putting the Crown to proof; refreshing memory; and dealing with applications to adjourn or for abuse of process. Where a defendant is convicted there is an expectation that the case be sentenced on the day (this needs discussion with probation, especially in DV cases). 

Howard Riddle

16th  February 2015