Ian West got into a bit of hot bother when he let rip with a judge and said what many of us would want to say when being put on the naughty step for failing to properly engage with ‘case management’. I’m not going to look into the rights and wrongs of that here. Suffice to say that I wouldn’t have dealt with matters the way that Ian did. And, whilst I can see that legitimate criticism can attach to his behaviour, it seems to me that Matthew Scott put it best when saying it was a bit of a storm in a teacup.
But, what is at the heart of all this is the ‘brave new world’ of case management. Although I say ‘new’, it is now heading towards being a teenager, with all the tantrums and sulky behaviour that is often associated with that age group.
A very brief historical overview. In September 2001 Auld LJ issued a report entitled ‘Review of the Criminal Courts of England and Wales‘ . This was not debated in Parliament and adopted. There was not consultation with the professions who acquiesced to. This was not discussed with the public at large, who then agreed to its conclusion.
What happened was the case of Gleeson  EWCA Crim 3357. Here, the defence kept back an argument to half time that was a ‘technical’ point, but was also a complete answer to the charge. The Judge permitted an alternative count to be put and held that there was no prejudice. This was upheld by the Court of Appeal, with reference to the above report. The LJ in the Court of Appeal for this case? A certain Auld LJ.
This opened the floodgates. There then followed a series of cases that prayed in aid the CPR to make further inroads into the rights of the defendant (see, as examples, R (Howe) v South Durham Magistrates’ Court EWHC 362 (Admin) and DPP v Meakin  EWHC 1067 (Admin) and Robinson v Abergavenny Magistrates’ Court  EWHC 2005 (Admin)).
As is often the case, this salami tactics allows huge changes to be made without any one particular step being of significance. Whilst the actual result in Gleeson may make sense, we find ourselves where it is almost the case that the role of the defence advocate far from being to “promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person” it is to help the prosecution fill the gaps in their own case, in effect, to do the prosecution’s job for them. Whether that view is right, or overly dramatic, is not the point. We got here without a roadmap and any debate as to whether this is the route we should take.
A sea change?
Make no mistake about it, this is indeed a sea change in the way that criminal cases proceed. It is a move to an inquisitorial system, and represents a fundamental change in the role of an advocate. There are good reasons for having credit for a plea of guilty, but it is clear that this does put pressure on a defendant to make decisions quickly. Whilst the old chestnut ‘your client knows if he’s guilty or not‘, it is naive to pretend that innocent people have not, and will not be, pleading guilty because of this. I was in the Court of Appeal today on an appeal against conviction for someone who had pleaded guilty. We won. There were plenty of issues, but a lawyer has to advise about credit and that has an impact on people’s decision as to whether they can have a trial.
In the Early Guilty Plea Scheme you get penalised if you don’t plead guilty straight off based on a case summary typed up by an officer who may be ‘out to get’ the defendant, or simply tired and doing a botched job at the end of a long shift (made worse by budget cuts to them). It is not phased as a penalty of course, but that is what it is.
The Criminal Procedure Rules places the heavy burden of having to disclose your case on the defence. It impacts on the right to silence – a cherished historical right going back four hundred years. This change may be a good or a bad thing, but it is a big change and to pretend otherwise is naive.
A rights based discourse This isn’t about whether we should have a written constitution with a Bill of Rights or not. I’ve got my own views on that, but one thing that we miss is a framework in which to discuss changes to the criminal justice system, whether it is the abolition of the right to silence, of double jeopardy, hearsay or whatever. In the USA (as an example), they have a Constitution and a Bill of Rights. Discussion about policy issues are often analysed through the prism of that, whether this is healthcare or the rights of suspects.
If the Early Guilty Plea Scheme were introduced there, the reaction would be very different. Far from the quiet acceptance that we have, there would be a proper and open debate as to how this impacted on the right to silence, on the right to a jury trial. Now the US is the home of the plea bargain, so I’m not saying this would be unconstitutional at all, but it’s more that this would be discussed as to what impact this would have on the rights of the defendant (guilty or otherwise) and the community. There would be a challenge in the Courts and, even if it was all maintained, at least there would have been an open and honest debate.
My views on the CPR are mixed. However, I am dead against the Early Guilty Plea Scheme as it it now. There are reasons for that, but whatever you take on the EGPS, I hope we can agree that this shouldn’t be foisted on the public without proper discussion.
There is the Levson Review coming up, which I’m going to look at in more detail later (there’s also the Rivlin review, but given that the MoJ have not endorsed it, there’s a danger that this will just be the Bar talking to itself with the answers being obvious, but ignored). But read his judgment in the case of In the matter of : Ian Stuart West and you will see what he thinks. It is a ringing endorsement of the CPR and the current position. I am sure that he will listen to all responses (and I would be very disappointed if he doesn’t get a shed load of them) and having been in front of him a few times, I have a huge respect for him as a Judge, but I doubt that this review will see what has been lacking so far – a debate about the EGPS/CPR.
Let us not kid ourselves here, we need to be realistic. Whatever the original intention of Sir Robin Auld, the pushing of these schemes is not to do with ensuring justice, it is not to do with protecting the public, it’s not even to do with sparing witnesses where possible, it is to do with ramming through cases as quickly as possible, wringing as many guilty pleas as possibly, with the ultimate aim of saving money – pure and simple. Whether the changes are right or wrong (and in fairness it’s probably a mixture of the two) we have sleepwalked into what is a fundamental twisting of the adversarial process and a fundamental change to our criminal justice system.
Fundamental changes require proper debate to be legitimate. That has not happened yet, which is a crying shame. Hopefully it will do soon. We certainly need it.