As stated previously, whilst I am a big fan of the CPR in principle, they don’t work at all in practice, and attempting to enforce them is just pissing in the wind. But, if we’ve got them, then we should at least try to comply with them, right?
Anyway, lurking around Court waiting to get on with a brace of PCMHs recently, I was filling out the PCMH form and right there, on page one, you can see the disparity between the defence and the prosecution, and a pretty good indication of why the CPR won’t work until they (or it. Never sure which) are properly reviewed.
What’s wrong with this picture?
The problem here is that the defence have to have a nominated advocate right from the off, the prosecution don’t. The point of the CPR is that we all collaborate to make sure that case will be effective. How is that going to work unless both sides have nominated their advocates at the start?
The argument will be that there are Case Progression Officers to deal with this sort of thing. Leaving aside the obvious comment, there is a lot to be gained from having advocates identified from the start, surely? If the aim of the PCMH is to sort out which witnesses are needed, whether admissions, interview edits, legal arguments etc will be needed and when by, how can this be properly addressed?
Is the real reason that it is impractical to allocate a case because there’s not enough time to do so? No, as nowadays a PCMH won’t happen until (typically) a month after service of the papers. Surely the reason can’t be financial – the CPS have one lawyer doing five or ten cases in-house for PCMH and so can’t properly deal with them in advance, and even if they can they know that they won’t be doing the trial? Possibly, but that’s not a good reason. I suspect it is actually the real reason, but it is not an acceptable one.
It’s not the person who designed the form’s fault – she was just following up the CPR. Let’s look at r3.8 CPR.
(3) In order to prepare for a trial in the Crown Court―
(b) the defendant must notify the court officer of the identity of the intended defence trial
(i) as soon as practicable, and in any event no later than the day of the plea and case
management hearing (if there is one),
(ii) in writing, or orally at the plea and case management hearing (if there is one);
(c) the defendant must notify the court officer in writing of any change in the identity of the
intended defence trial advocate as soon as practicable, and in any event not more than
5 business days after that change.
No mention there of the prosecution doing the same. Why not? Are you actually suggesting that a whole trial can be prepared by the defence, or that any delays are always caused by the defence? I’m sure not, but what message does this send out? CPS compliance with Court orders in London is under 1 in 4, I’m not saying this is the cause of it, far from it, but it surely can’t help?
So, if you work for the MoJ and are wondering how you can reduce the number of Court hearings and cracked trials, maybe have a look at this?
We can argue about whether or not an advocate should be stipulated at the PCMH, but it is a bit annoying (with my defence lawyer hat on) to have this imbalance written into the rules and written into the form. Why do you expect me to comply with rules unless my opponent is expected to as well? It often feels like the CPS aren’t bound by the CPR, this form really doesn’t help correct that impression.