“Stop Delaying Justice” ... or “Another Attempt to Cut the Cost of Justice”?

We received an email from our Justices’ Clerk on 23^rd December entitled “Dock Brief”.  It was our last working day before Christmas and it appears no one had opened it. I eventually read it on Wednesday. It contained a newsletter for all the advocates in Lincolnshire and it appears that this will be a regular publication. This is a good thing!

However, the first article in the newsletter was a reminder to us all that the initiative “Stop Delaying Justice” will start to be applied as from 1^st January 2012. We are not convinced this is a good thing!

Perhaps an overview of previous attempts to speed up the wheels of justice would be useful here. We are sure we am forgetting a few earlier initiatives (they seem to come and go so often) but the first to have any real impact was “Criminal Justice: Simple, Speedy, Summary” or, as we now all know it, “CJSSS” (CJ-Triple S) which was introduced in 2007.

[An aside: a story doing the rounds in 2007 was that the original name for this was Criminal Justice: Simple, Speedy until someone realised that that would leave the acronym as CJ:SS. Conscious of the connotations of the double S and, more likely, wishing to avoid the inevitable comparisons that would be made, the word “summary” was hastily tacked on. “Summary” never did make much sense; it could only apply to summary justice in the magistrates’ court anyway]  

The purpose of this initiative was to speed up the justice system so that cases reached court sooner after charge and that the number of hearings was reduced from a claimed average of five hearings down to one for a guilty plea and two for a contested matter.

Looking back at the guidance given whilst CJSSS was still in the preparation stage, the scheme always intended that a plea would be entered at the first hearing.  This did not meet with a lot of approval from defence lawyers and CJSSS has been implemented with varying degrees of success around the country. Looking at the statistics, it has had no impact whatsoever on the number of ineffective trials (which has been at a constant rate of 18-19% for the past five years). It has had no effect on the time taken from date of offence to the commencement of proceedings (it has remained at 84-85 days). The average time taken from date of offence to case completion in the magistrates’ courts has, however, reduced by about a week and a half.

Since the implementation of CJSSS we have had “Streamlined Process” where the police attempted to identify likely plea and thus tailored their file preparation accordingly, with a much shorter file being prepared for likely guilty pleas. Again, this has had no appreciable impact but has led to some files showing up an alarming lack of legal knowledge on the part of police officers and their supervising officers.  Two cases immediately spring to mind, both files prepared as likely guilty pleas

·         On a criminal damage case “The defendant admits criminal damage, but denies causing the damage intentionally or recklessly”;

·         On a theft of copper wire “The wire was old, decomposing, and had clearly been abandoned”

There have been several others, including the introduction of the Case Management Form which, for the first time, required defence lawyers to effectively disclose some of the advice given to their clients

Back to the newsletter; we are advised that “Stop Delaying Justice” emphasises the need to:

• Insist on a plea at the first hearing save in exceptional circumstances;
• Ensure that the parties identify the real issues at the earliest possible stage in the proceedings;
• Rigorously examine the need for witnesses to attend court and only allow them to be called where necessary;
• Give appropriate directions to ensure cases are managed properly;
• Robustly react to failures to comply with the rules and court directions.

We are reminded that this particular initiative is simply a means to ensure greater compliance with the Criminal Procedure Rules 2011 and thus has legislative backing. We are constantly advised that this initiative springs from the judiciary, but one cannot but help think that the Ministry of Justice is lurking closely in the background. 

It should be mentioned that, here in Lincolnshire, the courts have an excellent record of complying with the statistical guidelines laid down by the Ministry of Justice for such things as pleas at first hearing. It is our understanding that Lincolnshire is, in fact, the second best county in the country for compliance. This is in no small part to the fact that defence lawyers in the county have, on the whole, embraced the changes and have tried to assist in the smooth running of the courts. In theory, therefore, this new initiative should not affect us too greatly. 

We do, however, have real concerns that courts will lose sight of the reason they are there – to dispense justice – in the seemingly endless quest to comply with time targets set nationally by the Ministry of Justice. We are also left with the feeling that “Stop Delaying Justice” is aimed much more at the defence than the prosecution. 

We are told the magistrates will “insist on a plea at first hearing save in exceptional circumstances”. There is no guidance on what will be “exceptional circumstances” but the training material given to magistrates (a copy of which can be found here, thanks to the London Criminal Courts Solicitors’ Association) makes it plain that the sheer size of the prosecution evidence, or the possible complexity of the case, will not be sufficient to avoid entering a plea at first hearing. Recently, we were refused an adjournment in a case where the statements attached to the police’s summary of the case (and much of the summary itself) referred to an offence for which the defendant had not been charged! 

Traditionally, defence lawyers are blamed for “dragging cases out” in the totally mistaken belief that we do so to increase our fees. For those that still do not know – we are paid on a fixed fee basis. It is definitely in our own interests to deal with cases quickly. There is no “profit” in us getting a case adjourned. We ask for adjournments because we need them. Whilst on this point, it is clear from the training materials that waiting for the result of a legal aid application will not be an “exceptional circumstance”. 

This causes us the greatest concern, however; “Rigorously examine the need for witnesses to attend court and only allow them to be called where necessary”.  What does this mean, exactly?  One cannot escape the answer that this is effectively requiring the defence to reveal the likely cross-examination of a witness in advance of the trial. How else will a magistrate ascertain the need for a witness to attend court?  

This could be taken to a not-illogical conclusion that a defendant who has exercised his right not to answer questions in interview may then find that he has forfeited his right to have any live prosecution witnesses at his trial.  

What happens if the court refuses to allow a witness to be called? It would appear that the only recourse that the defence will have will be to have the decision judicially reviewed. Not really an option for the unrepresented defendant, however. 

We must, of course, see how this new initiative plays out in practise. It may be that it will speed up the judicial process but history suggests that it will not do so. More worrying, though, is that there is a real possibility that it lead to a higher conviction rate as cases are rushed through the court with indecent haste.

Virtual Courts - Justice and the camera

This piece originally appeared in the blog Tales From The Slab and we thank both Dave Thomas and John West JP for allowing us to reproduce it

Recently in the news I caught a piece on drink-drivers losing their licences within 90 minutes of being charged. Of course, I pricked my ears up; obviously being actively involved in helping such drivers to do just that. The link to the article can be found here. It involves the defendant, having been charged and whilst still at the police station, to plead guilty to the magistrates court via a live stream video link. The argument being that it saves everybody’s time and relieves the defendant of the luxury of keeping his or her driving licence until their subsequent court appearance. I am now to understand that this method of plea is being considered for other offences as well with the intention by the government of rolling out the scheme to all courts by 2012.

This has generated a lot of debate on both sides of the divide and I am very grateful to Mr. John Storer, who is a legal defence solicitor and Mr. John West, who is a Magistrate for their own take on this matter and their contribution to this blog. Thank you gentlemen.

In the 15 years I have been in law enforcement I have seen a great many changes to the way the police operate but it’s fair to say I have seen even bigger changes to the way the justice system as a whole operates. Perhaps it would be useful to recap on how things used to be and how we have arrived at the point we are today. As is the case these days the changes have been made in an attempt to save money and speed up the justice process; as that old saying goes “The wheels of justice grind ever slowly.”

As a young probationer, having arrested a suspect for an offence they would be taken to the police station and interviewed. It would be normal practice to then bail the suspect to a future date in order that the necessary enquiries could be made, that is unless evidence was collected at the time to provide reasonable substance to the allegation. It was the custody sergeant who made the charging decision and decided the most appropriate charge. Clearly, in those times, the custody sergeant was crucial to the justice system. If a file of evidence was complex then I would take it to a decision maker based within the CJS department at the station. Decision makers were experienced police sergeants who knew the law just as bit as well as anyone else. Again, they would decide if there was enough evidence to charge and for what offence.

At some point in the past, the decision to charge a suspect with an offence was taken out of the hands of the custody sergeant/police and given to the CPS. The main reason for this was to reduce the number of cases going to court where they would ultimately be thrown out or the defendant be found not guilty. Thus increasing the ratio of cases versus conviction and relieving the courts of unnecessary workload. As a result of this massive change, CPS took up residence in all major police stations within the country. This became problematic for the officers on the street. A long queue soon formed outside the CPS office and it was common to arrive at the office only to find that all the available slots had been taken for that day. This increased the pressure on officers with bail dates looming.

The other major problem was that the CPS only operated “office hours.” Unfortunately crime is not a nine to five business. Only if a suspect was ineligible for police bail could officers contact the CPS out of hours by means of telephone. Again this increased the burden on Officers as all evidence would have to be collected and faxed/emailed to the CPS lawyer. It was not uncommon for officers to be on the phone to a lawyer for over two hours if the case was complex. The knock-on affect was that those officers were not on the street and therefore not in a position to back up their colleagues.

There was also a problem with daytime charging. The CPS offices were getting swamped and so extended their hours to 10pm, but this still was not enough and ultimately the CPS withdrew from the police stations. The only way now to get a charging decision is to contact the CPS by phone and that is how it has remained to this day. Changes to section 24 PACE have also made increasingly difficult for officers to bring a suspect in as not meeting the newly introduced “necessity criteria.”

So that’s where we are at present. Back to the original point, I see no reason why, if a defendant is pleading guilty to an offence, why it cannot be dealt with via video link. For years, defendants having been summons for a driving offence have had the opportunity to plead guilty by post. Of course, if the defendant wishes legal representation at the time then that is a different matter. Notices of Intended Prosecution sent to drivers by post gives them the opportunity to plead guilty to the alleged offence. I don’t see it as an inroad to the erosion of court procedure or the rights of the defendant.

The Defence Lawyer.

The Virtual Courts pilot scheme operated in a London (Camberwell Green) and a North Kent (Medway) magistrates’ court between May 2009 and April 2010. During the course of the pilots, 16 police stations came “online”, 15 of these being in London. The Government hailed the pilot as a success and hence the suggestion that such courts be rolled out across the country.

However, the pilot scheme may not have been the “success” that the Government and recent newspaper and television articles would have us believe.

The Ministry of Justice commissioned an evaluation of the scheme, which can be found here. That report concluded that Virtual Courts actually added costs to the delivery of criminal justice in the pilot areas. Although savings were made in such areas of prisoner transportation, and the need to courier the police file to the Crown Prosecution Service, these savings were exceeded by the high set-up cost of the system, the costs of the additional burden placed upon the police custody staff, and the costs of running courts out of normal business hours.

There are not that many courts outside our major cities that deal with six custody cases a day, let alone an hour. Accordingly, video-link courts are going to be of use only to those courts which receive a high number of remand / custody cases every day.
The pilot showed up other problems as well. Much court time is saved, every day in every court, by the conversations held between prosecution and defence representatives before the court starts sitting. The slight amendment to a charge, the negotiations over bail conditions, etc. This could not happen when the defence solicitor was sitting in a police station and the prosecutor was in court.

Also, there was a feeling amongst the judiciary that defendant’s were not taking the court as seriously as they should, because it was difficult to convey the “dignity of the court” over a live video-link.

It is that last point that is my main objection, going back to the start of this post, for drink-drivers being dealt with by a virtual court. Driving with excess alcohol in one’s breath, blood or urine is a serious offence. It carries up to six months’ imprisonment, a maximum fine of £5,000 and a potentially unlimited period of disqualification from driving with a minimum of twelve months. Many of those convicted of this offence have no previous convictions. For them, the shame and embarrassment of appearing in court is as much the punishment as the fine and driving ban. I believe that the seriousness of the offence, and the impact of the court hearing, would be diminished by simply placing the accused in a video booth shortly after charge.

My other major concern is whether the defendant is actually fit to be placed before a court. Once a person has given a positive breath test (for it is the breath test cases that are most likely to be impacted), it is usual policy for them to be detained until they are sober enough to charge. In my experience, being “sober” usually means when the police believe he is no longer over the drink/drive limit. Very few are kept until they no longer have any alcohol in their system, because it can take 24 hours for alcohol to be totally eliminated from one’s system.

I am no “Luddite”; indeed, I am all in favour of embracing new technology. However, we must not start using technology for the sake of it. A court of law is, and rightly so, an imposing place. The effect of a court appearance should not be diminished to the equivalent of a conversation over Skype!

Do we really want defendant’s “appearing” before a court whilst they still have the equivalent of a couple of pints of beer in their system? Can we be certain that, although they are sober enough to charge, they are sober enough to appear in court and enter a plea?

Finally, the question of legal advice needs to be dealt with. Persons arrested for drink/driving offences do not have a right to have a solicitor attend upon them at the police station free of charge unless there is going to be an interview. They get telephone advice from their own solicitor or, more usually, CDS Direct (a telephone advice service run by the Legal Services Commission). That advice is sometimes given before the breath specimen procedure has commenced.

John Storer is a partner in a specialist criminal defence firm of solicitors in Lincolnshire and a former Deputy Clerk to the Justices

The Magistrate.

The Government has shown its support for virtual courts and proposed the giving of evidence from police stations for police officers and witnesses. In my view this is wrong on several levels. The fundamental task of the police is to prevent crime and, where committed, detect and apprehend offenders and place them before the courts. Unfortunately with the introduction of simple cautions and then conditional cautions the police have stepped over the line into deciding punishments. This government has decided, in its agenda, to save money and without regard to justice to move forward even more into areas, which were once the provenance of the courts.

Unless one is a regular customer, being taken to a police station is a harrowing experience. Many will be glad to get out of there and will take the first avenue offered. How many times have you read of a detained person taking the offer of a caution just to get out, little knowing the effect this may have on their life thereafter? The current attacks on legal aid provisions will do nothing to stem this. Even when charged such persons will be expected to now appear on a video link with the court. Perhaps they will have had access to a solicitor. However the defendant is still within the police station and even if his solicitor is there he cannot speak comfortably. The Justice Minister, Jonathan Djangoly, has said he sees no reason to allow the client/solicitor access to an area where they won’t be overheard. So we have a situation where a person is arrested, charged and sentenced within only a few hours. Great says the government money saved and courts can be amalgamated or closed.

Added to this we have the proposal to allow police officers and civilian witnesses to give video evidence from police stations. I know police officers can be waiting round at courts for their case to be called but so can members of the public. I sit on video remands from prisons where all we see in court is a TV picture of the defendant. I know there is a prison officer there with them but I cannot see them. I also cannot see who else is in the room. The same situation will be more evident in police stations. There will be rules around who is allowed to be present with the defendant but how can we be sure these will be complied with? Witnesses are not, understandably, allowed to confer and there are already concerns about police officers writing their notes together. How then does the court satisfy itself that the other police witnesses are not watching the evidence or even in the same room? How comfortable would a defence witness be in giving evidence in such circumstances? I believe that it is in the police’s best interest to be removed from the case after arrest and charge. There was a time, not so many years ago, when it was not uncommon for magistrates to refer to “our officers” and the public would unquestionably support them. Sadly this is not longer the case.

Magistrates’ Courts are seeing less and less cases. Courts are being closed or amalgamated and legal aid is under attack. Justice is not (and has never been) about speed or saving money. This country has always been proud of its system of justice. Are we really saying it’s acceptable to cut corners for the sake of convenience and saving money? Well it’s not the reason I became a Magistrate and I don’t know if I would want to remain one if this became the status quo.

Mr. John West is a Magistrate and Author sitting in criminal, family and crown courts.

So there you have it. As with any multi angle piece I do not draw any conclusions but let you the reader make up your own mind. I will say this though and I am sure both John’s may also agree. There are matters that should be going to court but aren’t. CPS has become de facto juries in what can and cannot be allowed to court and therefore by default deciding whether a defendant is guilty or not guilty. I fully support the independence of the judiciary and only they should decide the guilt of a person. As long as that is held intact only the method of trial becomes an issue.

Accordingly, many defendants will contact a solicitor between court and first appearance to get advice. There are occasions, admittedly rare but it happens, when a person will have a defence to the charge. Perhaps, more commonly, the facts of the offence itself means that the defendant can argue that special reasons exist and that no disqualification should be imposed. This latter area of law is complex, and defendants do not often realise that such reasons actually exist. There is a real danger that defendants will appear before a court on camera, without having legal advice, enter a plea of guilty, and not mention the facts that may trigger a “special reasons” argument

The loss of the ability to drive is probably the greatest punishment that a person convicted of drink/driving suffers. It impacts not only on them, but also their families and, often, their employers. Many defendants use that time between charge and first appearance to make necessary arrangements and to let their employer know that they will soon be no longer able to drive. Is there a risk that defendant’s appearing before a virtual court within hours of charge will enter a plea of not guilty to delay the inevitable?

 

T3 - a letter to the Law Society Gazette

The headline on the front page of this week's Law Society Gazette reads "Firms "draw line" on paperless plan" (available here) immediately drew our attention. We would very much like to work in a paperless office but realise that such a dream is still several years away. We hope that the T3 (Transforming Through Technology) initiative of the CPS will be a success. 

We have our doubts, though. There are many issues to be tackled, such as wireless internet access in courts, police stations and prisons, and even practical points such as the lack of electrical sockets in most court rooms. There still seems to be no firm proposals as to how evidence will be delivered to the many defendants who turn up at courts every day and who have no legal representation

At the moment, however, our most pressing concern is the secure email system (CJSM) which is expected to deliver the bulk of this electronic information between all the agencies of the criminal justice system and thus make T3 a success.  We simply do not think the system is up to the job. Our reasons for this have been outlined in an email one of the partners, John Storer,  has sent to the editor of the Gazette in response to the article mentioned and the body of it is set out below

Dear Sir

Let me say at the outset, I am not a Luddite. My firm is quite happy to work in a paperless environment and we have been making enquiries of the CPS as to why we cannot receive evidence by electronic means for many years. In fact, our first request mentioned floppy disks!

However I feel I must comment on the the statement of David Jones, director of the CPS's efficiency programme, that all criminal defence firms need to do is join the secure email system (CJSM). Those unfamiliar with CJSM may imagine some type of snappy, intuitive, email interface similar to other online email providers, such as Gmail or Yahoo Mail.

If only that were so!

The truth of the matter is that the CJSM system software is several years past its "sell by" date and I do not believe it is now fit for purpose.

Problems start as soon as you access the site. There is a notice on the log-in page telling you that users of Internet Explorer 8 or 9 (easily the most commonly used software for internet access) may experience problems. They will. CJSM does not work with IE8 or 9 without switching to "compatability mode". It does not work very well with Google Chrome. The warning of this problem has been there for over 6 months, but no improvements to the interface have been made

I could go on at length about the slowness of the secure email system, the poor search system, the needlessly complicated way of assigning an email addressee from one's contacts, and even the way in which contacts are displayed. There are other problems as well

My main concern, though, is the lack of memory. We are a small firm in a small market town. We use the system to email the police for bail-back information, and we send all correspondence to the Crown Court and CPS via the system. The vast majority have been simple emails with no attachments. In the first six weeks of using the system, we had used 25% of the available memory. The emails cannot be forwarded to another email system and thus we are left with no choice but to print off the email and then delete it. So much for a paperless office!

Once we start receiving electronic files, I anticipate we will run out of memory within three months. Larger firms will be experiencing difficulties within weeks.

We actually welcome this new way of working in the criminal justice system, but for it to be a success the CJSM system needs a major overhaul and upgrade before T3 kicks in in April. It is my understanding this is unlikely to happen.

We actually raised these points back in September and had the following reply from Diane Aldsworth at the Ministry of Justice ICT department forwarded to us:

"We are planning to procure a new secure email service but this may be a few years away as we await developments in other parts of Government IT.  However, in the meantime we are looking to see if we can improve the user experience although this won’t be a full overhaul. 

I would be grateful for any ideas on specific improvements that could be made."

The history of Government procurement of IT systems deserves, and probably has, several blogs of its own.  Suffice to say, very few public sector IT systems cover themselves in glory. Clearly we are stuck with the diplodocus-like CJSM fror the foreseeable future. Accordingly, there has to be a real risk that T3 will fall at its first significant hurdle.

As we mentioned at the outset, we welcome the introduction of technology into the criminal justice system. However, it has to be modern technology - using software that is clearly years out of date is not going to work

Incidentally, suggestions (polite ones, please) for the improvement of CJSM can be sent to Diane Aldsworth