“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.