Consultation – Sanctions for breach of the CPR

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Introduction

Courtesy of CrimeLine, we have possible the most important consultation of the year (on the basis that whatever happens with legal aid the MoJ won’t be consulting on it, at least in any meaningful sense) – and that is the Criminal Procedure Rules Committee consultation on sanctions for breaches of the Criminal Procedure Rules.

As background, here is a brief history of the CPR and its problems, as well as why my initial enthusiasm for the CPR has waned over time.

What is up for grabs?

The stated aim is to look for ‘suggestions for new sanctions for procedural default in criminal cases‘. More specifically, they are looking for “suggestions for new sanctions for procedural default in criminal cases that could be imposed by or under the authority of the Criminal Procedure Rules and within the existing statutory framework“.

What’s the current position?

In theory, quite good. Looking at the CPR, there are wide case management powers in general, as well as powers to exclude evidence and refuse to hear applications that are served out of time.

The problem is that these powers are rarely exercised. And that is for good reason. A Judge is obviously reluctant to exclude relevant evidence, or to shut out a proper application on procedural grounds. At a push they will grant an adjournment, but this causes problems of itself in terms of ongoing delays and costs. Likewise with the defence – it’s obviously not fair to ban a line of defence, or to prevent a defendant from adducing evidence that may show that they are innocent.

There’s a suggestion that ‘naughty boy Courts’ may work. I’m not sure that that’s right, and I can’t see it working in the bigger Court centres. It doesn’t deal with the underlying problem of installing a culture of compliance.

Which leaves the question of costs. There is a problem with this though in that it does not work in the same way as it does in a civil case. In many cases there is simply no power for a Court to order costs against the CPS. Against that backdrop, there is obviously a reluctance in ordering costs against the defence.

The upshot is that there is currently no effective sanction. The problem is that to fail to do anything about this is to encourage it. I had a case recently where shortly before trial the CPS had been subject to 41 directions, and had failed to comply with every single one of them. That’s a score of 0/41. That’s pretty poor, even by usual standards, but is not unheard of. And I cannot remember a cases which proceeded with all the directions being complied with. It is hard to see this as a series of isolated problems, but a systemic one.

Some tentative suggestions …

It seems to me clear that any procedure rules without an effective sanction are pointless. The situation is getting worse and worse, and shows no sign of improving. In fairness to all involved, the issue is a simple one – money. Or rather, lack of it. 5 years ago, the CPS and Defence were stretched and lacked the resources to properly do the job. Since then, there have been more and more cuts. Although there are now fewer prosecutions, the savings (in terms of time) have not been enough to offset the cuts. The figures from last year are dismal – the CPS comply with 23% of Court Directions. This is not sustainable.

The question then is how to force the lawyers (on both sides) to comply with directions. I cannot see that there is any effective sanction that can work, other than costs, and that is what I will probably be suggesting. The jurisdictional obstacles to having costs against the CPS must be swept away, and a system introduced whereby the defaulting party pays the costs of the other party if a hearing is ineffective or work is required by the other party when a direction is not complied with. There will have to be costs on a nominal basis for some hearings, given how defence (and, to a lesser extent, the CPS) Graduated Fees are structured and it may be that a standard rate for most cases could be drafted.

None of this is rocket science, but there has been a remarkable reluctance on behalf of the MoJ to do anything about it. In fairness, the danger if this is introduced is that the CPS would be hit with a series of wasted costs orders which in the long run would make their job harder. It seems to me that it is justifiable on the basis that the publicity from a large wasted costs column appearing in the CPS annual report is the only way that they will get the extra funding that they need.

Unfortunately, this will require some change to the statutory framework to implement in full. Nonetheless, it is still worth suggesting this both for the changes that can be done under the CPR alone, and also to push for the necessary legislative change.

How to respond

The deadline for response is 18th September 2015. Please send any response to CriminalProcedureRuleEnquiries@justice.gsi.gov.uk – and feel free to copy me in… I’m happy to collate and publish any responses.

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2 thoughts on “Consultation – Sanctions for breach of the CPR

  1. But see para 8 of the consultation – it looks like the Committee have already decided against this option.

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