I was sitting in Court the other day, waiting to get on for a Preliminary Hearing, complaining about the fact that I was waiting to get on for a Preliminary Hearing. Not just because of the seemingly endless optimism of the list office, but also because I had a (very) few papers clutched in my hand and some very clear ‘not guilty’ instructions.
When I finally got on the case was adjourned for a PCMH within 90 seconds. An entire waste of time for which I got paid £0.00. I went to the List Office to enquire why every case is now listed for a Prelim – I thought we were supposed to ‘Stop Delaying Justice!’ and avoid hearings in Court like the plague (unless it’s to go along and plead guilty)?
I thought that rather than cursing the darkness, maybe I could try and do something about it? I have a habit (as I guess we all do) of feeling helpless in the face of whatever new procedure is thrown at as. But are we?
A new dawn
There’s nothing the List Office could do. This is as a result of orders that have come down on high – the London Group Crown Court Protocol (similar Protocols are available elsewhere). This Protocol, along with the entirety of the Early Guilty Plea Scheme appears to have been put together between the MoJ, Judiciary and the CPS. For some inexplicable reason, there was no consultation and no involvement from the defence, on either schemes. To be ignored once is impolite, to be ignored twice seems deliberate.
As you know, I love the CPR, but that doesn’t seem to be in the collaborative spirit.
Letter to the Powers that Be
Looking at it, the idea of listing every case for a Prelim is obviously absurd and contrary to common sense. It’s also objectionable as it requires defence lawyers to work an (extra) day for free in most cases. Only a civil servant from the MoJ could not see the force in that argument.
But, is the practice lawful? It seems to me that, as well as being a generally bad idea, it is contrary to the Criminal Procedure Rules and the new Criminal Practice Direction (see Preliminary Hearings Letter for fuller reasons). The CPR and Crim PD should take precedence over local protocols and listing practices.
I’ve attached here a modified version of the letter I sent (Preliminary Hearings Letter). I understand that the CPR Rules Committee are looking into the issue of Preliminary Hearings and it seems to me that the more people that contact them pointing out the problem with the current position, the better.
I’ve not had a response from the Rules Committee or the CPS yet, but the more people that raise this issue, the more likely it will be that there will have to be proper consideration given. If you are also getting annoyed with the new listing policy, do something about it, One way is to use the letter as a template and write your own.
Obviously feel free to adapt it, make it read better, etc. I’d be interested in finding out what response people get…
To give some further justification, it’s worth looking at the consequences of listing every case for a Prelim, whether or not it is needed.
There are about 100,000 Crown Court cases a year. Some of these will actually be capable of being resolved at the Preliminary Hearing, and some will need a Preliminary Hearing anyway (although very few).
No-one really knows how much it costs to run a Crown Court – there are various figures flying around. I’ll take a figure of £2,021 per day (written answer from Chris Grayling to Sadiq Khan from 14th October 2013) even though it is hopelessly law.
I’ll take a guilty plea rate of 65%. Given that 36% of trials crack, and many cases that go through a Preliminary Hearing will end up with a guilty plea before trial, it is clear that the proportion of cases where the Preliminary hearing is ineffective will more than offset those trial cases where a Preliminary Hearing was legitimately required.
I’m going to take a figure of 60,000 ineffective Preliminary Hearings per year. I think that this is generous, but it is good to err on the side of caution.
If I was feeling cheeky (or worked for the MoJ) then I would allocate a cost of £46.50 for each Preliminary Hearing, so as to bump up the appearances of costs. But I’m not, so will take an average of £77,000pa for a CPS HCA (that’s inclusive of ‘running costs’).
Looking at Court listings, I will take a figure of 20 prelims a day if there were one Judge dealing with them all at a Court centre (in practice they will be spread around).
In summary this gives the following consequences of unnecessary Prelims :
- 3,000 Court days, which means
- 12 Judges, full time, overseeing that, causing
- £6 million in Court Costs, and
- £925,000 costs to the CPS and, if you take a nominal payment of £87 for defence lawyers
- £5,2 million for defence costs.
This will be offset in part, I accept, by savings from not serving any papers on the defence and forcing guilty pleas (but note that this doesn’t include other costs such as bringing prisoners to Court). But even setting aside the financial aspect, wouldn’t it be good to have 12 extra Judges to deal with trials.
This is all a rough science obviously. I don’t claim complete accuracy, and you could certainly pick holes in some of the assumption, but these should be about the right order of magnitude at least.