A few weeks ago we covered the announcement of the Brave New World of Damian Green at UKCrimeBlog. This was basically just a bit of an introduction and background to his speech. His speech also prompted a slightly less neutral response from me.
We now have more details. The CBA have covered the announcement of the creation of the Criminal Justice Board (‘CJB’). What was noticeable was the fact that in the collection of all the talents in the new CJB, there was no room for the defence to be represented. To be charitable this is a bizarre decision, a bit like trying to reform the NHS without asking GPs what they think.
We are told that the defence will be, very generously, allowed to have some input.
Today (5th March) Chris Grayling announced plans to bring
BVT PCT in with an obviously unworkably tight timetable. He talks of the need for savings. Frankly, I don’t believe him, but if he is serious about savings and efficiencies, then to start the ball rolling, here’s some suggestions as to what the Board can do to actually change things. All bar the last one will not cost anything to the government (far from it, they could save a fortune in efficiency savings), and the electronic court suggestion will, I believe at least, save money in the long run.
Sorry that it’s a bit rushed, but I wanted to get it out today. There’s plenty more ideas lawyers have if the MoJ are serious.
1. Implement a costs regime that works
This is the crucial one. Almost all criminal cases in the Crown Court are funding by legal aid. I don’t have the figures for the Magistrates’ Court, but would imagine that the same applies, at least for contested cases.
At the moment, what is the sanction for the CPS if they do not comply with an order that the Court has made? Following the ruling in R (CPS) v Bolton Crown Court  EWHC 3570 (Admin) the answer is, effectively, nothing.
One possibility is to make regulations under s19 Prosecution of Offences Act 1985. There is already power to make payment out of central funds to “any other person who in the opinion of the court necessarily attends for the purpose of the proceedings otherwise than to give evidence”. This would help the defence at a stroke, but would not affect the CPS directly. I don’t think, actually, that this would be as much of a problem as it seems – because the total amount paid over would be a matter of public record and will make it clear where the fault lies.
But really the MoJ should follow what the Court asked them to do in the Bolton case (and previously in other cases) and amend the regulations to allow costs to be paid by the CPS and include them in the definition of ‘party’.
As I say, this is vital. The current situation is a bit like a football match where the rules of fouls only apply to one side only. It’s not a fair fight. Any attempt by the Board to reform the CJS will fail unless this is addressed; it’s as simple as that.
2. Individual Responsibility for Prosecution Cases
I’ve looked at the problems caused by the POD system here. It is, as anyone in their right mind will see straight away, a recipe for disaster and chaos. If it was an experiment, then we have to accept that it has been tried and has failed.
If in any case there is a problem then it must be clear to all who is ‘holding the parcel’. It may be they are responsible for the delay, it may not. But if Ms X knows that it is her case and she will be in the firing line. For that reason, she will have to stay on top of her cases and, if a deadline is likely to be missed, inform parties of this and explain the steps that she has taken to ensure compliance.
If it turns out that there is a wider, more systemic problem, namely that there are just not enough CPS employees to cover it, then at least that will become clear and it will be then over to the Government to see what they want to do with it.
3. Individual responsibility for defence cases
There is a box on the PCMH form for Defence advocate and for defence case progression officer. They’re not taken especially seriously, in part because it is the Prosecution bringing the case and the defence have to be, to some extent, reactive. Also, it is a bit hard to bear down on someone on the defence side for not complying with one of the CPR requirements when the CPS will probably have breached ten or more before then.
For that reason, we have to start with the CPS. Once it is clear that the Courts are taking the issues with the CPS seriously, then it will be clear that the defence must fall in to line also. A situation where the defence have some confidence that a phone call will be answered, or an email read and replied to, will lead to the defence engaging with the system more. Here, the costs regime is present to allow immediate enforcement. I firmly believe that once the CPS take their job seriously, so will the defence.
4. Penalties for non-compliance with directions
It should be simple. If the Court orders something to be done by 1st April then it should be done by the 1st April. If not, then the party who is supposed to do this should ask for an extension in advance and give reasons. Only if this is done should the Court countenance an extension.
But this is really directed at the CPS. The CPR can be ‘beefed up’ to say that if a bad character application, hearsay application, or additional evidence, is to be served by such a date then if that date passes then the Court will not allow it, unless there are exceptional circumstances. Here the Courts need to police this. One way of ‘encouraging’ this would be to allow the defence a right to adjourn the trial if such an application is sprung on everyone less than a week or so before trial (with costs to be paid by the CPS).
5. Prosecuting advocates to have decision making powers (but at a price)
One of the peculiarities of the current system is that the advocate (HCA or barrister) who is instructed to conduct a trial is allowed to prepare any legal argument before and during the trial that may shape the case and, most importantly, actually do the trial, is not entitled to make many ‘case management’ decisions. Typically this includes whether certain pleas are acceptable, or whether a re-trial should be undertaken.
The reason for this is, we are generally told, is that freelance advocates too readily ‘carve up cases’. Whether this is true is not known, but such decisions are required to be run via various people.
This does cause various problems. At the moment, there is, in the vast majority of cases, no point in having any discussions between the parties until the day of trial. This runs a coach and horses through the fundamental principle of the CPR – that of individual case management.
In theory this can be overcome, the advocate can speak to the relevant people. In practice, this almost never works – the relevant person is not there, they’ve moved office or nobody is named. The end result is that there are frantic phonecalls before someone can be found. At that point the advocate, who will have read all the papers and may actually be ready to do the trial there and then, will speak to someone who has no knowledge of the case and give them a summary before being told what to do.
Of course all CPS advocates have been assessed in relation to their knowledge of relevant CPS policies. If this is a serious assessment then we must assume that all advocates are competent to do so.
The answer that I would propose is that if the papers are sent out more than 48 hours before the hearing, with contact details named of two people that have knowledge of the case, then the advocate must clear it with them first. If not, (or these peope are, as is so often the case, ‘unavailable’) then the advocate can make the decision themselves. They may, of course, be called upon to justify it at a later date.
When this was up and running the defence would know that they can discuss things in advance and actually get an answer, this should then become routine.
6. An electronic courtroom
Technology is a wonderful thing, but is woefully underused. Damian Green recognises that, but here’s something that can actually be done. I’ll take as an example a simple case, Possession with Intent to Supply cannabis – two people found in a car with 50g, the issue being personal use. The matter is committed on 1st April for a PCMH on 1st May.
There should be no need for any hearings prior to the trial, but even allowing for a PCMH, there should not be any further mentions.
The timetable is clear. What I would envisage is that an advocate is allocated 14 days before PCMH (at the latest). They then sign in to a centralised court system with a secure log in and go ‘on the record’.
In short (and I can expand on this) everything can be done online. Documents such as defence statements and interview edits can be uploaded into that virtual court file. If a deadline is looming, then an automatic reminder sent. And another if the deadline is passed. It is all about instilling a sense of responsibility, coupled with the ability to do something about it.
For example, if I am defending in the above case, my job is clear. I know when I have to serve a Defence Statement, I know when I have to do the interview edits by and, most importantly, I know that if I don’t do this the blame is clearly on my head. If the case has to be listed, it’s because something has gone wrong and the person culpable will have some explaining to do.
This may seem to mainly directed at the CPS. That is true, but there are good reasons for that. Firstly, frankly, this is because the CPS is the biggest cause of the problems. Secondly, the way our system works is that it’s lead by the Prosecution. If it’s a game of chess, then it’s the CPS that move first. Defence lawyers are reliant on prosecutors and can only really respond.
This is just a few things I’ve thought of whilst cooling my heels waiting around at Court. Over to you Mr Grayling.