A Change of Heart on the CPR

Introduction

So, how was it for you? Was it a new dawn? Did you feel the change? Did the earth move for you? Was everything more efficient? I’m referring, of course, to the 7th October 2013. There was celebration throughout the land – we had the twin pleasure of a new version of the CPR – Criminal Procedure Rules (see here for a guide to the main changes) coupled with a new Criminal Practice Direction. Riches galore.

When the CPR first came in they were met with a healthy dose of scepticism from pretty much all lawyers across the board. I was the outlier, the person who was in support, one of the few who was looking forward to a new regime where cases would be managed properly from start to finish. I was wrong.

It was said by the ‘powers that be’ that peoples’ views would change once they were implemented. With me, at least, they were right. After a (relatively short while) I became disillusioned. It quickly became apparent that they wouldn’t actually be enforced properly. And the only change they would be bringing in would be to b prayed in aid in order to crack down on the rights of defendants, and the ability of defence lawyers to do their job properly.

What have the CPR ever done for us?

Bad character and hearsay application are still weeks, months late, and the Courts allow it, even on the day of trial. Always saying the same thing – in effect “it’s regrettable/outrageous etc that it is being done so late, but it’s in the interest of justice to allow it…” (a view that, I believe, the Court of Appeal has always gone along with). Deadlines to serve disclosure or evidence come and go with no sanction applied (even when it was only forthcoming after you had to go to Court to order disclosure).

Listing practices didn’t change (the ‘Best Practice Guide to Listing’ is still being produced if you fancy reading it) – the whole ‘I’m trial counsel so will see it through …” didn’t happen (and despite being promised by Carter, hasn’t changed since either). How often do you get to Court on the day of the PCMH and the Prosecution advocate hasn’t read the papers (at least in any detail) and can’t sit and have a sensible conversation. Letters to the CPS go into the same black hole as they always did.

There does appear to be, as our currently LCJ said back when he was a lowly LJ “a sea change in the way in which cases should be conducted“. Sadly, just as the incoming tide only goes one way, it feels to many that the CPR only bite on the defence. Are things better now than in 2005? I’m not sure they are to be honest.

But I thought we’d ‘Stopped Delaying Justice!’?

Hmm… there have certainly been plenty of initiatives of late, all of which have been predicated on the CPR. The problem (to my mind) is that they are directed at the wrong target. Instead of funding the CPS properly (or accepting that ‘there’s no money left’ and cutting the number of prosecutions), the aim has been to ease the workload on the CPS by passing it on to the defence (whilst cutting the money paid to defence lawyers).

Rather than being an independent body, above the fray, it often feels that the MoJ (generally, and through the CPR) go into bat for the Prosecution. By way of recent example, there was a lecture by a JP (who sits on the CPR committee) posted on the MoJ website. In this, he cites only one case in the whole of the lecture – that of Robinson v Sutton Coldfield MC [2006] EWHC 307 (Admin) to back up the argument that magistrates that are to hear a trial can sit on arguments to admit bad character etc. This rather ignores the inconvenient fact that the High Court has effectively ruled against that view in Murchison v Southend MC [2006] EWCA 569 (Admin) and Barnard v Isleworth CC [2011] EWHC 1648 (Admin).

I’m not picking on him (and it says on the website that this is not necessarily the views of the MoJ = although I doubt they would be publicising it if it was not ‘on message’), it’s just the most recent speech that I read, and it irked me somewhat. There was an air of unreality about it.

The nadir of Government initiatives for me was the initiative rolled out by the MoJ called ‘Stop Delaying Justice!’ It was not an impressive document – getting the burden of proof wrong was a particular low point – and was full of examples of how Courts ‘should’ proceed, replete with references to caselaw. I wrote up a lengthy (46 pages) response for our pupils to have with them in Court to counteract this. This wasn’t to be difficult, but to point out that the document, far from being a fair summary of the current position, was highly partisan. Throughout the whole thing the CPR are stated as being at the heart of the new plan.

The Early Guilty Plea Scheme (the latest innovation in the Crown Court) has multiple issues as well. I won’t go into them now, but see the case of Lawrence [2013] EWCA Crim 1054 for one of its early triumphs. Quashing (at great public expense) a conviction, the Court of Appeal noted that the defendant “therefore pleaded guilty, incidentally as part of a “streamlined” process after very limited disclosure, to an offence she had not committed”.

If the CPR were genuinely about managing criminal cases, then all the various initiatives would expose a fundamental tension – if you want cases managed properly, then you need to have the resources in place. In the Magistrates’ Court, for example, insist on proper disclosure in advance from the CPS and pay defence lawyers a separate fee to attend a case management hearing where a prosecutor is ready to actually manage the case.

Remember, lawyers get paid a flat rate fee now. If a case is adjourned, they are effectively doing that day for free. That is important because you would get the impression that nasty defence lawyers are adjourning matters for their own nefarious purposes.

Nothing could be further from the truth. If a defence lawyer is offering to work for free, why are they doing that? The only reason is because they are professionals, and are doing that because they feel that is in the best interests of the client. Too often the role of the lawyer, that of giving informed legal advice, is forgotten in a rush for ‘efficiency’ and ‘case management’. Also, as any lawyer will tell you, sometimes giving a little more time now, saves a whole lot more down the future.

What’s the answer?                                        

The fundamental problem is that there is no effective sanction. This is the major difference between the Civil PR and the Crim PR. If you’ve involved a civil case and the other side doesn’t play ball, then they know that they will get hit in the pocket. Now, the CPS can do (or not do) whatever they want without any cost implications in the majority of cases.

The Court has the power (r3.5(6)) to “impose such other sanction as may be appropriate”. This is obviously wide ranging, but rarely used. In fairness, there have been examples of Judges excluding evidence, or staying proceedings, but these are few and far between. On the one hand, this is understandable. If there is an identifiable victim, then why should they not ‘get justice’ because of the inefficiency of the CPS? Even in other cases there is an obvious reluctance in letting a (potential) guilty person ‘get away with something’ on a ‘technicality’.

The problem with this point of view is, as was said (in relation to adjournments) in Walden v Highbury Corner [2003] EWHC 708 (Admin) “The longer courts tolerate the sort of inefficiency … the longer it will continue. To tolerate it is to encourage it”.

I would suggest the failings in the CPR are clear – one in four Court orders directed towards the CPS are not complied with. It’s not rocket science – if you actually want the CPR to work as claimed, make sure Court orders are enforced. To that end, why not start with having a proper costs regime against the CPS?

Every other avenue in terms of chivvying the CPS don’t seem to be working. Given that the MoJ knows that a proper costs regime would bankrupt the CPS in a matter or months, if not weeks, I’m not banking on them to do anything about it. What can be done then?

Maybe it’s time for Judges to seize the initiative and start to be more robust in the use of the CPR – making ‘as if’ orders in terms of bad character, further evidence, etc. And, the ultimate sanction of a stay of proceedings must be used more readily. Only this way will the message go out that the principles behind the CPR are to be respected. There is a systemic problem of underfunding in the CPS that will go unresolved until this happens.

Conclusion

I’m not against the CPR, I’m just waiting for them to be properly enforced. And 8½ years in, it’s about time. It is fair to say that the defence don’t always ‘play ball’, which is frustrating when you are prosecuting. It is difficult to be too hard on defence lawyers though.

Partly because they are reactive by necessity. In the criminal justice system game the CPS always moves first, and if they are running down the clock all you can really do is wait. Partly because the funding has been squeezed so tight and it feels a bit wrong to have a go at someone who’s getting £5.32 per hour for not working hard enough. And partly because the CPS are never in a strong moral position when complaining about a party to the proceedings not doing something. If the CPR were taken seriously however, then the defence would have to fall into line (and, of course, if the defence didn’t have to chase the prosecution, this would ease some of the pressure).

So. Let’s give a welcome to the new amendments to the CPR. I doubt you’ll do any good, it’s like fretting over the curtains on the Titanic whilst ignoring the obvious. We will all carry on doing what we’re doing. I’ll probably occasionally bring up the CPR in Court, more to raise a laugh than to achieve anything. But, if you want to make the CPR fit for purpose – give it teeth and make it apply to both sides – bring it on, no-one would be happier than me. Be careful what you wish for though, if the CPR were rigorously enforced, it could get very messy for the CPS.

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17 thoughts on “A Change of Heart on the CPR

  1. Dan, with reference to Murchison v Southend MC [2006] EWCA 569 (Admin) and Barnard v Isleworth CC [2011] EWHC 1648 (Admin), I don’t think they’re as clear cut as you indicate. It’s possible my skim reading has let me down, but could you further illustrate or elaborate on your point about trial magistrates not hearing bad character applications (presumably gateway (g) is the exception)?

  2. Hi Jon, here’s a couple of quotes from the judgments :
    From Murchison –
    9. Mr Maitland referred us, in his very helpful written submissions, to decisions of this court, for example R v Birmingham Magistrates Court ex parte Robinson[1986] 150 JP 1 and R v Downham Market Magistrates Court ex parte Nudd [1988] 152 JP, in which it was held that where one member of the court became aware or might have become aware of an accused’s record before verdict, there had been a material irregularity and the conviction could not stand. The court emphasised on each occasion that justice must be seen to be done, and any perception of improper bias must be avoided.

    And from Bernard :

    18. We understand that the judges and justices hearing appeals in the Crown Courts in cases of this kind where conviction is in issue do not see pre-sentence reports and other material normally considered when sentencing before they have heard the evidence and determined guilt. This is not surprising; it accords with principle. Pre-sentence reports are prepared on the assumption that the defendant is guilty. They may contain, as this one did, matters of opinion and hearsay evidence, which are either inadmissible in evidence at the trial or only admissible if certain conditions are satisfied. They often contain, although this one did not,
    references to and an assessment of the defendant’s antecedents. Those are only admissible if the bad character provisions of the Criminal Justice Act 2003 are satisfied.

    19. In an appeal to the Crown Court, the judge and the two lay justices are the tribunal of fact. It is important for the tribunal of fact not to have before it such inadmissible evidence. While a circuit judge or recorder sitting with a jury may have seen a defendant’s antecedents and other inadmissible evidence in the case papers, he or she is not the tribunal of fact. Where such a judge is sitting with lay magistrates, if a pre-sentence report is included in the case papers, it should not be read until after the trial stage is concluded and has resulted in a verdict of guilty and the court is considering sentence

    I read those as saying that a bench should not routinely decide bad character applications before hearing a trial. If they exclude the bad character? Even if I’m over-optimistic in my reading, I’d suggest that it’s not as clear cut as many benches make it…

    [for some reason it won’t let me underline the specific parts I wanted to!]

    • I’m not trying to start a fight (for once), but how do you reconcile that with the position on allocation of TEW matters in the Mags? Eg: on day of trial, CPS lay further/alternative EW charge, and the court will have to consider mode of trial. As part of that, antecedents are see and considered. Bench allow new charge to be preferred, and retain jurisdiction. Bench not disqualified from hearing the trial straight after. Or would you say that’s a material irregularity? Can it be an irregularity if it usually happens or is expected to happen?

      • Always happy to engage in a (civilised) fight Jon! I would say that that is also a material irregularity and the bench shouldn’t hear the trial if they’ve looked at the antecedents. I’d imagine that the scenario you talk about is fairly rare though?

        Of course, under the CPR, the CPS should get an absolute bollocking for laying a new charge on the day of trial and I would expect that, after looking at, among other things, :

        rule 1:
        (b) dealing with the prosecution and the defence fairly;
        (c) recognising the rights of a defendant, particularly those under Article 6 of the European
        Convention on Human Rights;
        (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the
        progress of the case;
        (e) dealing with the case efficiently and expeditiously;

        and

        1.2.—(1) Each participant, in the conduct of each case, must―
        (a) prepare and conduct the case in accordance with the overriding objective;

        and rule 3:
        (2) Active case management includes―
        (a) the early identification of the real issues;
        (b) the early identification of the needs of witnesses;
        (c) achieving certainty as to what must be done, by whom, and when, in particular by the
        early setting of a timetable for the progress of the case;
        (d) monitoring the progress of the case and compliance with directions;
        (e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest
        way;
        (f) discouraging delay, dealing with as many aspects of the case as possible on the same
        occasion, and avoiding unnecessary hearings;

        3.8.—(1) At every hearing, if a case cannot be concluded there and then the court must give
        directions so that it can be concluded at the next hearing or as soon as possible after that

        The Court would send the CPS off with a flea in their ear for not complying with the principles of the CPR. After that, they would refuse to allow a new charge to be laid, as this would be inconsistent with the over-riding objective. So the Court would not even get to the question of looking at the Defendant’s antecedents?

        That’s how it works right … ?

  3. An excellent summation of a system that is being wrecked by procedural zealots. What is more important…the right result or the fastest? Recently had a judge trying to arraign defendant on a section 18 with no medical evidence.(although the cps have had it for four months and never disclosed it).Judge trotted out that rubbish “he knows if he’s done it or not”. i pointed out that the nature of the injuries determined the charge and so he didn”t know, in fact no one knew. Result.. one hacked off Judge. I wonder what these judges would have said at the Bar 20 years ago when asked to plead a client without any evidence? Apoplectic spluttering I’ve no doubt. Short memories and no shame I’m afraid.
    There is a remedy, I believe. I suggested it in court. Wholly unsurprisingly it did not find favour. I said that a repeated failure to comply with a court order should be treated as a contempt. Bring the case worker/police officer responsible to court. Put them in the cells for a day. In the absence of anyone identifiable bring the Chief Crown Prosecutor and lock them up for the day. Radical, i know, but it would only need to happen once and I can all but guarantee it would never happen again. When I suggested it the judge said I should right to the Justice Minister. I explained that we were no longer on speaking terms.

    • Presumably not suitable for EGP scheme, and you can’t advise your client to plead anyway, as there’s insufficient evidence that offence has actually been committed. Therefore, must be a not guilty plea by default. Which completely negates the efforts made by all and sundry to speed things up!

      • This was at PCMH !!! Incidentally, all Manchester cases are now listed as early guilty pleas even if you write to the court saying this is the most not guilty plea in the history of not guilty pleas

  4. Was going to make the point about needing a costs sanction for prosecution failures then realised it didn’t matter-what is lacking is the attitude of the judiciary who regard CPS failures as of no significance yet insist on a DCS at or before PCMH.

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