We received an email from our
Justices’ Clerk on 23rd 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 1st 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.
So when you ask for an adjournment to advise on plea, you are met with the facile question: "but surely your client knows what they have done?"
ReplyDeleteTo which the answer is, "Yes, but they still need me to read the pros case, to take THEIR instructions, and advise whether or not WHAT they have done amounts to the offence charged."
Obvious examples are self defence to assault, or frequently in fraud cases, was there any dishonesty?