TRANSFORMING THE CROWN COURT
A Response From The Bar Of The North Eastern Circuit
INTRODUCTION
Improving the performance of the whole criminal justice system.
At the beginning of this response we point out that we are dealing with a criminal justice system.
It concerns criminals
It is often forgotten that this is the first and we would submit the key word in understanding the issues being addressed in this and many other papers about the criminal justice system.
It is the criminal who is the cause of the system and it is the criminal who is the key ‘player’ throughout. The essential nature of a criminal is that he puts his own desires and interests above that of anyone else, and will use anything and anyone to satisfy his objective, manipulating any system to his own perceived advantage.
Until this is acknowledged, no progress will be made in achieving greater efficiencies within the system. The criminal will always attempt at best to play the system and at worst to defeat it.
Justice
What is this and how is it measured? We are all concerned with Criminal Justice.
There is a public interest in seeing that crime is prevented, but when it takes place there is equally a public interest in ensuring that it is detected and that the offenders are brought to account and appropriately dealt with.
There is also a public interest in seeing that miscarriages of justice do not take place, as they bring about a lack of confidence in the system as well as being unjust to those who are wrongly convicted.
Finally there is a public interest in seeing that proper and proportionate resources are allocated to these issues which underlie public perceptions about the safety of our streets and the security of our homes.
System
Inevitably this consultation is concerned with the system and with systems. It is clear that there are improvements that can be made to the system and that active case management will improve the efficiency of the system and hopefully lead to a better quality of justice, as perceived by all the ‘players’ and by the public at large. However the systems must be just and must serve justice. The system and its outcomes will always be imperfect as it is a criminal justice system created because of criminals, who are themselves major players in the system.
SECTION ONE
EXECUTIVE SUMMARY
2.1 The Government drive for improvement
"Reducing delay and costs" are clear objectives which we would support. "Improving the quality of the service to the public" requires clearer definition. If this refers to the quality of justice then this should be stated and we would agree with it. If it does not refer to that, then reference to the quality of the justice delivered by the system should be included somewhere. We appreciate that this may be difficult to measure, but it is this that the defendants, and the lawyers (who on the whole are not seen in this report as people whose concerns should be addressed) who have this issue at the forefront of their concerns.
A more ‘joined up criminal justice system’ is something we would want to support and advance.
2.2. Pressures on Crown Court workload
We do not understand how ‘pleas before venue’ can be said to have led to a richer mix of cases for judges to deal with - these are cases that would previously have come to the Crown Court either by way of committal for trial, or by way of committal for sentence after summary trial/plea. There are some increased pressures on the judiciary arising from PBV, but they arise more from frustration about the inadequacies of the material provided to them, or the unsatisfactory nature of what has happened in the lower court than an increased volume of cases to deal with.
We are not able to assess the increase in volume of cases, or the increase in length of individual cases that might arise from the Human Rights Act or the Crime and Disorder Act.
Whilst we agree that consistency is a good thing, we would not want to forget that good ideas can often arise from within a particular area if people have scope to exercise initiative. A local example would be the protocol that His Honour Judge Savill QC initiated in relation to seeking disclosure of medical records. Particular local conditions can give rise to good as well as bad local practice. We would hope that there would not be a rule as in the new Civil Procedure Rules that forbids local practice directions.
Currently on this Circuit we are in the process of agreeing Circuit wide protocols for disclosure of Social Services Records and Medical Records
2.3 We would support a drive for efficiency savings
4 The strategic context
Reducing costs
We are not able to comment upon the extent to which these proposals will affect unit costs of a criminal case for either the Crown Court Service or for the Criminal Justice system. However if the proposed alterations are to be effective then we believe that it will be necessary to front load the payment to the legal professionals in order to reward them for the necessary work in which they will be involved, gathering information and making responsible decisions about the conduct of cases.
Appropriate speed
Whilst reducing the average time from receipt to case conclusion is laudable, it must not be at the expense of all else. One of the problems with averages is that they can increase the pressure to squeeze into a timetable that which in a rare instance does not fit because if left to its own timescale that case will adversely affect KPI statistics etc. If this is the case it is important that the person responsible for the decision as to whether a case is allowed to exceed average time limits is not someone with a personal interest in the achieving of the target KPI.
Increased satisfaction
It is significant that it is customers, judges and staff alone whose increased satisfaction is aimed at by the proposals. We would have thought that it is short sighted not to attempt to include the lawyers in this objective also.
Vision
5 Fair, Speedy and Certain Justice
Clearly justice must be fair.
It has often been said that justice delayed is justice denied. By a similar token justice that is rushed will certainly lead to sense that justice has been sacrificed on the altar of speed. Justice must not be rushed. It must be recognised that sometimes investigations on both sides take time.
6-15 We deal with the these proposals in our response to the detailed proposals that follow
SECTION TWO
OUR PROPOSALS
Protocols, Incentives and Sanctions
4. In general terms we would support the proposal to have overall national protocols, that are then worked out with increasing detail and specificity as you get nearer to the coal face through the regions, down to areas, local courts and individual cases.
6. We are far from sure that the specific selected areas are capable of being dramatically improved through the use of protocols, incentives and sanctions. We have obtained and refer to statistics compiled for this Circuit for the 12 month period April 1998 - March 1999. Preliminary figures for the months since then indicate no different trends.
Witnesses
Unnecessary Attendance
A witness may come to court and yet not give evidence for many different reasons which we deal with in detail at pages 9 and 23
Non attendance of witnesses
This is a significant issue. On this circuit more cases are adjourned for this reason than any other (4.4% of trials are adjourned through none attendance of a prosecution witness). However it is a complex matter on which we would like to see more research. In our experience this non attendance arises more often from the decision of a witness not to attend rather than from a failure to warn the witness. We do not see how incentives and sanctions for the agencies involved will affect the attitude of the witnesses. We understand that warning witnesses is about the worst job a police officer can be asked to do. There are no resources to bring witnesses to court other than in exceptional cases. Many trials now take place a long way from the scene of the crime either because of the closure of local courts and the concentration of court business in large cities, or because trials are moved to locations convenient as a slot to meet custody time limits but inconvenient for witnesses to get to.
Not giving evidence on first attendance
Again this can arise for many reasons as we set out at pages 9 and 23. Not all these problems can be dealt with by advance case management, although we believe that the combination of many of the proposals in this document will reduce this problem.
Evidence
Again we are not sure that the statistics on this Circuit support this as a major reason for adjournments. 0.7% of trials were adjourned in relation to the service of additional evidence by the prosecution. 2.5% were adjourned for further preparation by the defence. None were adjourned because of late alibi notice.
The conclusions that we would draw are that there does need to be active case management to ensure that preparation is completed and that the case is ready before it is listed. However we shall draw attention at page 11 to the realism that will be needed when setting protocols and targets.
Defendants
4% of Defendants on bail on this Circuit failed to attend for their trial. We do not see that anything can be done about this. All defendants know that if they fail to attend they risk additional punishment (including custody); they know that the trial will be put off and that they will almost certainly be remanded in custody. They still choose not to attend. What more could be done? They are criminals!
Failing to produce a prisoner from custody happened 7 times in the year across the whole circuit and accounts for 0.1% of the adjourned trials. It is therefore not a significant factor and usually arises because of some human error - failure to notify the prison because of a change in circumstances - arrest and remand elsewhere. We would like to see whether this small number of cases has any common factor susceptible of being improved by protocols, incentives and resources, before some grand scheme is drawn up that may not meet the problem such as it is.
Pleas/Cracked Trials
Again those charged with increasing the efficiency of the system must appreciate the nature of the central player - he is a criminal. If the philosophers’ stone is to be discovered which will change his essential nature then it should be applied to the giving up of crime, rather than putting off the evil day.
Of course active case management by a Judge may advance the date of a plea for example by arranging, where the prosecution are going to serve additional evidence, a further hearing before the date fixed for trial when the defendant can consider whether or not to plead; by putting pressure on the prosecution to accept a lesser or alternative plea offered by a defendant at a date prior to the date of trial; or in other ways. However there will always remain a hard core of criminals who will put off the day of reckoning - they hope that a witness may not turn up particularly in some types of cases, and they will always put off pleading for as long as possible especially when Christmas is in sight. To the average criminal ‘player’, time out of jail now with the current girlfriend is far more important than the promise of a few months off the sentence which after all might never come for one hoped for reason or another.
The number of cracked trials may be reduced, but cracked trials are with us as long as we have criminals in the criminal justice system. That fact may be unpalatable to those who would like a smooth and seamless system, but it remains a fact.
8. Incentives and Sanctions
Incentives will be helpful and sanctions may be necessary, but we have a number of concerns.
Possible Incentives
Fees
We suggested at page 4 that fee structures will need to reward early preparation and case management hearings if the latter are to be effective.
Sentence discounts
We have serious concerns about whether any change can be made to the present policy which we set out at page 11.
League tables
We are concerned about this suggestion. Public scrutiny in this day and age usually means press headlines. We do not believe that there is any basis for believing that the present proposals will cause the press, especially the tabloid press but even the broadsheets (vide Frances Gibb in The Times on this document), to alter their the prejudices and agendas in relation to the Criminal Justice System and particularly as regards Judges and lawyers. We further believe that many of the agencies are currently under resourced and demoralised. The meeting of standards does not in our experience lead to increased confidence, but league tables do increase demoralisation.
Possible Sanctions
There can be no sanctions without fault. Human rights issues are raised by this whole issue. Many ‘failures to comply’ will arise because the criminal ‘players’ do not attend for interviews, or give proper instructions, or because someone else failed to deliver their part of the service. For these reasons no sanction may be imposed except through due process. That is and must remain a judicial function.
After all, who will fine the Court Service for over optimistic listing, or for refusing to take sufficient account of the advocates’ availability when a defendant says "I will sack my advocate and defend myself because you wouldn’t list the case for the availability of Mr/Miss X"?
When agencies are under resourced the staff become first demoralised and then ill through stress, thereby reducing the ability of the agency to meet its targets. To fine or cap such an under resourced agency would surely be counter productive.
9. Incentives will help the better management of the system, but they must be targeted at those who are capable of making a difference and who are willing to try to do so.
Sanctions should be a last resort. The key to joining up the system and making it more effective is to make sure everyone understands not only the roles that other people play, but most importantly the problems with which they grapple in seeking to deliver their service. Judges "balling out" CPS law clerks does not help now, and a CMO being able to issue a spot-fine because a statement was filed 3 days late thereby spoiling his target figures for the month/year when in fact there were many genuine difficulties getting the statement which in the end produced a plea will not help in the future.
SECTION THREE
CASE PREPARATION
Current Problems
10. It is said that there are too many unnecessary hearings, and those that are necessary are too long and often ineffective. We agree that some steps can be taken in the preparatory process without their having being ordered at a hearing. National protocols, whereby steps are taken and information provided to the court in a defined and orderly manner can only make the process more efficient, hopefully resolving some issues on the way - eg what witnesses are required, what exhibits are agreed, what interviews and schedules etc are agreed and what are not. However if any of these matters remain unresolved then the resolution of the issues can only take place at a hearing.
Witness waiting time is a complex matter. There will always be uncertainty about how long any particular witness will be in giving his or her evidence, making it impossible to predict how many witnesses will give their evidence in any particular court session. Sometimes witnesses are dealt with very quickly - some don’t come up to proof for the prosecution and no cross examination is needed, some give very helpful answers to the defence very quickly when, it had been anticipated that cross examination at some length would be required to get the material wanted from them, and sometimes they take much longer than anticipated because they raise fresh issues in the course of their evidence, or they bring additional documents with them that no one knew existed, or they are just very slow to deal with, or the court is a slow court. All these matters make prediction of when subsequent witnesses will be required very difficult and you have to err on the side of caution - namely keeping the court occupied. In addition witness batting orders are required by the CPS at an early stage because the process of warning witnesses through the CJSU is neither simple nor speedy. When a list is requested it is on the basis that the trial will have a clean start. That presumption is frustrated when the previous trial is part heard, or pleas have been added to the list or the case starts late for some other reason.
Most witnesses don’t mind waiting - after all it is probably a once in a lifetime experience - provided they are given regular information about what is happening. Unfortunately the shortage of resources on the part of the prosecution (no law clerks in court during ordinary trials, advocates having to do everything, and probably no police officer present in many cases), means that there is no one who can provide that information regularly.
11. It is pointed out that 27% of trial hearings are adjourned even though there has been a preliminary hearing and matters are still not ready.
This is a misleading statement. There is no direct linkage between the 27% and the lack of sufficient proper preparation.
On the North Eastern Circuit 24 % of listed trials were adjourned in the 12 months between April 1998 and March 1999 [reduced to 23% in the 3 months - April to June 1999].
Of the 24%
7.5% were at the instigation of the Prosecution, of which the main reasons were
4.4% - non attendance of witness(es)
1.7% - more preparation needed
0.7% - additional evidence
9.8% were at the instigation of the Defence, of which the main reasons were
4.0% - non attendance of defendant on bail
1.2% - illness of defendant
2.5% - more preparation needed
6.5% were as a result of administrative problems, of which the main reasons were
3.7% - Floater/Backer not reached
2.1% - lack of time, no other judge available
0.7% were for other undefined reasons
We draw attention to these figures as they show that on many occasions trials are adjourned for reasons that have nothing to do with lack of preparation, but much more to do with the fact that at the centre of the Criminal Justice System are criminals. We draw attention to these figures not because of any lack of enthusiasm for reform but to ensure that feet are kept firmly on the ground in relation to the true nature of the problems.
Pre trial protocols and better case management will not touch some of these deep rooted problems.
12. There is increased delay because of weaknesses in the provision of and exchange of information in a timely manner.
We are not able to speak about inadequate provision of information from the Magistrates’ Court to the Crown Court, and have not ourselves been aware of any such problems on this Circuit.
However we are aware of the difficulties in the exchange of information between prosecution and defence once the matter is in the Crown Court. This often arises because of the tortuous route by which such an exchange of information takes place and the inadequate resourcing of the prosecuting authorities. If the defence ask for some information, then that request has to be addressed to the CPS; the hard pressed CPS case worker, when (s)he has time, will ask the advocate whether that is a proper request to answer; the trial advocate will respond and the request is then passed to the police; the police will make enquiries to discover the answer if it does not already exist; the answer is then sent back via the same route ie the police to the CPS, to the advocate, back to the CPS, and then on to the defence. It is not possible to bypass the advocate as there are a number of issues that (s)he will have to address before approving the request and/or the transmission of the answer. The relevant employees of both the CPS and the Police, who are key people in this process, may be part time workers or job sharers and will certainly have leave, courses, other court commitments etc, and all that mean in days of limited resources that the process takes time.
This is a key issue that has to be addressed, because time scales, protocols and the like have to be realistic if they are to stand any chance of being effective.
13 We agree that streaming could be helpful in progressing cases through the system, recognising that some need less proactive direction and management than others. The real issue is how to allot cases to which stream.
14. Rigorous active case preparation is to be encouraged.
Hands on management, based on protocols and timescales is to be encouraged. Incentives and sanctions are more difficult issues.
Incentives to plead guilty already exist and advocates are under a statutory duty to advise their clients about this. However we see real problems in relation to this, eg (1) there will be cases were the difference between plea and fight is the difference between liberty and custody - if this is said directly by a judge to a defendant, then if he pleads he can go to the Court of Appeal and say that he was blackmailed into pleading and get his conviction set aside - see R. v. Turner (F.R.) [1970] 2 Q.B. 321, 54 Cr.App.R. 352 and subsequent cases - dealt with in Archbold at 4-78ff; (2) can or should Judge No2 be bound by what Judge No1 has said?
Sanctions will undoubtedly be necessary and power already exists in the form of wasted costs orders. We do not see any difficulty in these being used more regularly in order to put some backbone into the proposed system. However we are fundamentally opposed to any sanctions being imposed by anyone other than a judge acting judicially. We see that there are human rights issues involved in the imposition of sanctions - a right to be informed of the alleged failure, and a right to be heard before a decision is made.
We have already commented on streaming generally.
We see the sense in having Case Management Officers (CMOs) assigned to each case. We would advocate that each case should be assigned to a Judge and a CMO. The CMO’s role would be to monitor the progress of the case and to administer the management, but all decisions in the management of a case are judicial decisions and must be made by a judge. Again there are human rights issues involved. The fact that Judges are to some extent itinerant and will at times be away from their home court will not present any difficulty - the IT will enable him/her to be able to follow the progress of the management of the case and if s/he needs to see any new document it can be faxed to him/her for a decision as to what step should be taken next.
Apart from issuing questionnaires and forms in accordance with standard national protocols, we would again emphasise that directions other than standard should be decided and issued by a judge, and all appointments must be held before a judge. It is unrealistic to say that an appointment can be chaired by a member of the court staff working under a judge’s direction. No court appointment is "chaired", even by a judge; it is presided over, and will result in decisions and directions - judicial functions, which cannot be delegated.
15-16. We agree with the sentiments and aspirations of paragraphs 15 and 16, but would again emphasis that they will remain intentions and hopes, which will sometimes be frustrated by difficult cases and/or by manipulative defendants.
17. This will require a great deal of mutual co-operation, and listening to the particular problems that afflict all the other agencies playing a part in the system. Lack of resources, both human and financial affect all the agencies to our certain knowledge.
18. We would expect that in the sorts of case that are envisaged as falling within the 1st stream there will be little need to tailor the standard timetable, it should simply be followed.
In more complex cases we would expect basic information to be supplied within a standard time frame by the parties and then for a Case Management Appointment to take place before the Judge who would give further directions from a standard list of potential issues. The CMO would then monitor the progress of the parties in following those directions, reporting failures (with reasons if given) to the judge who would decide what steps should be taken eg to issue an "or else direction", or to list for a further directions hearing.
19. Detailed proposals
19.1 Step One
Apart from allocating to a Judge and CMO, we don’t disagree with this.
19.2 Step Two
It is at this stage that different procedures apply according to the stream to which the case is allocated. "Committals for sentence" presumably include all case of plea before venue and are allocated to stream one. These can be difficult and complex cases and are more appropriately dealt with in stream two. They certainly need input from the parties and judicial scrutiny before being brought to a hearing.
Stream One
Managing the case to a hearing presumably means fixing the hearing when the data and reports have all been received. Provided that is all it means then it is acceptable. However please note what is said later about listing and the taking into account of the availability of the advocates for the hearing.
Stream Two
It will be important that the prosecution summary is prepared by the case lawyer, rather than a clerk if proper information about the legal and administrative issues is to be provided.
In addition to the case summary prepared by the prosecution, some information will need to be provided by the defence. After all they probably have more knowledge of the "legal and administrative issues at stake" than the prosecution.
Time estimates are notoriously difficult to make. They are most likely to be accurate if provided by trial advocates. Estimates in cases other than single handed cases do require consultation between all the parties if they are to be anywhere near accurate. Length of cases, particularly pleas, does also depend upon the judge - some are twice as slow as others. In short, arriving at time estimates (of both pleas and trials) is an art not a science.
It is unclear whether the defendant is envisaged as being present at the appointment. If he is not present, will it have been necessary that he has had a conference with his trial advocate before such a hearing takes place? If not, then the trial advocate can give no realistic information about plea, and in most cases about the defence and the issues. What provision will be made by way of flexibility in fixing the appointment for the trial advocate’s availability to be considered?
Stream Three
Decisions must be taken by the judge, and will be at the Narey hearing, but the CMO will receive the various answers and certificates ordered to be filed at that hearing and will be able to report slippage/failure to the judge who will decide upon what action to take (see above).
19.3 Switching
Clearly this is a good thing where appropriate.
Eg one - stream 1 to 2 - the protocol should set a time within which one of the parties should make this suggestion
Eg two - stream 2 to 1 for type of trial mentioned - it is not clear what advantages that will have if there has been no appointment attended by the defendant and the trial advocate. The sort of case envisaged is the sort which "cracks".
Eg three - general discretion - this should be the judge not the CMO’s decision. However experienced CMOs are, they are not lawyers and do not understand many of the issues that arise in the simplest of trials.
19.4 The CMO’s role in monitoring and reviewing case progress will be important to ensure that cases do progress properly. However ensuring that directions are complied with, suggests the use of sanctions which are properly within the role of a judge only. It is not possible for a CMO to impose sanctions as that must be a judicial act performed with due process. Certificates of readiness would be a good idea, though to say that the hearing will not proceed without their filing begs the questions. The real issue may well prove to be the listing of the case. Will it be listed without a certificate being filed? If so, what is their purpose. If not, in complex cases, the parties may not be ready until immediately before the trial, which will need to have been listed several months previously.
20. Information technology links should improve communication and decision making. The development of the technology will require close liaison with such companies as ACE and Meridian who design most of the software used in Barristers Chambers.
There is no reason why Judges should not communicate with the advocates by e-mail to obtain information about cases in order to progress the management of the case.
21. We agree that many of the proposals will improve the efficiency of the system. We are not persuaded that the degree of certainty can be achieved that the authors of the paper are hoping for. That is not to indicate any lack of enthusiasm on our part for active case management, but we believe that there are limits to what it will achieve given that this is a criminal justice system.
SECTION FOUR
LISTING
Current Problems
The problem of trial hearings being adjourned on the day they are scheduled to be heard is recognised to be a serious problem. There are three main causes:-
- Failure of a witness or witnesses to attend [either because there has been a failure to warn or a warned witness has failed to attend through disinclination or illness];
- The "human" factor ie the not insignificant number of cases where a defendant will "put off" the day of decision as to whether to plead "guilty" or not until he has to, or until he knows the witnesses have all attended or, for example, in a case with a domestic complainant, the alleged victim is present and is prepared to go through with giving evidence against him;
- The consequent and unavoidable "cracked" trial;
- The importance of knowledge, information or even intuitive skill (?good guessing) of the listing officer in his or her own Court Centre.
- The giving of fixed appointments BUT, given the importance of securing the attendance of the trial advocate at any important appointment or preliminary hearing, there should be some flexibility in the fixing of dates of appointments and hearings to enable them, so far as possible to attend.
- We recommend the abolition of the fixing by the committing or transferring Magistrates Court of the first hearing date in the Crown Court (currently PDH). We suggest the committing/transferring Court should identify a bracket period within which the date of the preliminary hearing should be fixed by the Crown Court, which should endeavour to accommodate advocates briefed by both Prosecution and Defence. Their attendance will be likely to make the hearing far more productive;
- So ring fencing of trial times (10.30 am - 4 pm) is welcomed.
- The loss of the significant role played by the impact of an appearance at the Crown Court as a superior court in both appeals and committals and the likely sense of injustice felt by defendants in, for example, having their appeals heard in the same or an adjacent courtroom to the one in which they were originally tried/sentenced;
- The availability of appropriately instructed and robed advocates at short notice in the Magistrates Court;
- The loss of the facility of mixing Magistrates from different Petty Sessional Divisions thereby losing the "independence" of the appellate/sentencing Court and the gaining of experience of the approach of other benches.
- Sufficient court accommodation in Magistrates Courts, particularly in the smaller towns;
2. Failure of the Defendant (on bail) to attend;
3. Court unavailability.
Other causes include the late service of evidence or a late change of instructions by the defendant requiring a previously unwarned witness to attend. [SEE generally the statistics referred to earlier].
The need to ensure a match between the workload of a court centre and the availability of suitable judges to hear the cases is recognised.
Delays and interruptions to the courtroom trial day(s) by the listing of other work for the trial judge is a constant problem and causes delays in the starting time of trials and, often, the smooth and timeous completion of the case with obvious repercussions on the anticipated timings of witness requirements and the inefficient use of jury sitting times.
Our Solutions - the detail
The proposed solutions are generally laudable and supported in principle.
However, account must be taken of the following considerations:-
In short, the desire for certainty must not obliterate the need for flexibility.
Consequently, there a constant dynamic between certainty of hearing dates and the efficient use of the full court day ie there must always be some "backing" trials not allocated to a specific court in a Court Centre to cover the possibility of trials "cracking" or, unavoidably, having to be adjourned (eg as a consequence of late illness).
The listing arrangements proposed in Paragraph 31 make good sense BUT there will be a considerable loss of local knowledge and expertise from centralisation and it is questionable whether, for example, central listing for both Leeds and Bradford could be done efficiently in terms of minimising delays.
We approve of and support:-
We have grave reservations in relation to the listing of pleas or other hearings
requiring the attendance of defendants before 9.45 am and between 4 pm and 4.30 pm because
of the logistical difficulties of ensuring the attendance of defendants (whether in
custody or on bail). It is common experience now for defendants in custody not to arrive
at court until 9.45 am or later. Moreover, any advocate engaged in a trial will inevitably
need to be dealing with trial matters before 10.30 am and after 4 pm (it is relevant to
remember the general rule of thumb that for each hour of Court time at trial, the advocate
is usually engaged in about an hour’s preparation/conferring).
We dislike the proposal to abolish the itinerant system of High Court Judges trying crime (Paragraph 33.7). The proposed system of dedicated High Court Judges would destroy the obvious advantages to both the Judiciary and the criminal justice system as a whole of the higher Judiciary gaining and imparting their experience in all parts of the country.
We accept the appropriateness of dismantling the existing tiering system and its suggested replacement as well as the reassignment of High Court Family and Civil work to new and separate Diary Manager (Paragraph 34).
BUT
We envisage considerable practical and legal difficulties in relation to the hearing of appeals and committals for sentence in Magistrates Courts by visiting Circuit Judges/Deputy Judiciary. Some obvious problems are:-
We strongly favour the retention of hearings of appeals and committals for sentence in the Crown Court and suggest a system of notification of the transfer to the Crown Court within 24 hours and thereafter, management and listing in accordance with Stream 1 proposals.
We see and welcome the crucial role to be played by the listing support computer system CREDO (Paragraph 35). If the new listing system is to work efficiently, the flexible diary system referred to in Paragraph 35.2 will need to be fully and properly utilised and there must be direct links to all Chambers, CPS offices, Defence Solicitors and CDS offices.
SECTION FIVE
IN COURT
Current Problems
a) The Bar appreciates that there are some of the problems identified in paragraph 44 of the Consultation Document. There are often difficulties with staffing in the Crown Court. It is unacceptable for any Court to be staffed by less than one clerk and one usher at all sitting times.
b) The Consultation Document at paragraph 45 identifies a culture of proceedings continuing at the pace of the person with the slowest handwriting, and there being no single agreed transcript or note of what happened. This, we fear, confuses two concepts. There must be a single transcript of what happened and the sooner that this is in the hands of all parties the better. However the taking of a note is, certainly from the view of the advocate, not designed to provide an alternative transcript but is a continuing working tool, necessary for cross-examination, and it will be impossible to conduct proceedings without it.
c) The Bar has always been at the forefront of developments in information technology. The use of such technology in "large paper" trials is welcomed.
d) The concern about technical or legal language is unfounded. Whilst such language is used and properly used in legal argument between the advocate and the judge, advocates are not so foolish as to seek to use such terms to a jury, that course being counter productive.
Our solutions – the In Court Framework
a) We commend paragraph 49 of the Consultation Document. This is a clear example of the fact that in order to make the proposals work extra resources in terms of money and manpower will be required in the short term. If the proposals are implemented at half-cock they will not work.
b) Modern technology is a good thing. However the proposal at paragraph 50.2 is dangerous. If all that is anticipated is the extension of the use of video/television link evidence to specified categories of witness, for example expert medical witnesses, there would be no objection. The statement at 50.2 "To enable more evidence to be given by TV Links, which is more convenient and less intimidating for witnesses" goes further. The experience at the Bar suggests that evidence given through a TV screen loses its impact. If such evidence became commonplace for all prosecution witnesses, simply because it was more convenient and less intimidating, justice would suffer. The prosecution evidence would lose some of its force and acquittals would become more likely. It is appreciated that in the case of child witnesses this is a risk which must be taken. Similar arguments apply where there is an evidential basis for saying that one has a particularly vulnerable witness. This should never become a general principle.
c) Under no circumstances, and it is accepted that this view is not expressed in the consultation document, should technology be used to prevent the need for the defendant to be present at all times during his trial.
d) As set out above, the Bar would not seek to argue against the use of plain English during hearings.
Our Solutions - the detail.
a) The detail in respect of the court staff set out at paragraphs 52 to 54 is welcomed. It is imperative that the resources be provided to allow the work to be done properly.
b) The giving of evidence by video link is dealt with above. The use of video link should not be the norm. It certainly should never be the position that the Defendant attends his trial/gives evidence by video link. The use of video link should not extend beyond children, witnesses who are vulnerable and expert witnesses who would otherwise be unavailable to attend court.
c) The proposal that there should be a dedicated and integrated computer system is to be applauded. Only if workstations are available for all agencies to use, is there any point in implementing the proposal. At the risk of sounding repetitive, adequate resources must be made available. For the proposal to succeed, workstations need to provided as follows:
i) Judge
ii) Court clerk
iii) Advocates rows x. 4
iv) Jury box x. 6
v) Dock
vi) Witness box
If there is not a workstation in the jury room, a paper core bundle will still be required. If there is a workstation in the jury room, what can be accessed on it will require careful policing.
d) Once the system of workstations is in place, it is anticipated that a good deal of documentary evidence which is currently placed before the jury in paper form could go before the jury in electronic form. It remains hard to see how the jury could annotate these records electronically. They will still need to take manual notes.
e) The audio recording system as proposed is a "halfway house". It would be better to allocate resources to the pursuit of a proper voice recorded transcript as envisaged by paragraph 57.4 of the proposals. Whilst such a transcript will assist the Judge in the preparation of his summing up, and advocates in the identification of points for a closing speech, we anticipate that there will still be the need for note-taking as a tool for the preparation of questioning. Such note taking does not however add considerably to the time spent on a trial. We do not see the preparation of a contemporaneous transcript as a great time saver.
f) The need for provision of results promptly is recognised and endorsed by the Bar.
Our Conclusions
a) The proposals for the staffing of courts are laudable. Resources must be available to ensure that a clerk and usher are available to each court at all times that court is sitting.
b) The proposals involving the use of modern technology are welcomed. The provision of a contemporaneous transcript would assist all parties. The provision of sufficient workstations as envisaged above will lead to a streamlining of evidence, a reduction in paper and easier cross-referencing between pieces of evidence.
c) The interests of justice should not be compromised by the introduction of modern technology. In particular the giving of evidence by video link should not become the norm. The only extension to the current categories of witnesses giving evidence in this way should be expert witnesses whose non-availability would otherwise delay the trial.
d) Modern technology should never be used to remove from a defendant his right to be present at all times during his trial.
e) The use of plain English should be encouraged. This is already taking place.
SECTION SIX
CUSTOMER SERVICE
It is accepted that those who attend Court often for the first time and for whom it is a novel experience should be provided with certainty and information concerning what is required of them. This usually arises in the case of witnesses and jurors (although it should be noted that jurors come to Court as a result of a statutory obligation and as such should be given particular care and information).
We welcome the proposals which seek to promote the provision of comfort, information and relevant segregation where appropriate. The use of technology to improve the existing systems and facilities is to be encouraged and will hopefully be properly funded.
We do however feel that the use of the word customer is completely misconceived. Witnesses and the jurors are not customers. Defendants are certainly not customers. It is a misleading term. The Crown Court is a serious place where matters of extreme concern to individuals in society as a whole are determined. It should not be equated with a shop or a bank.
The Court can and should convey an atmosphere of gravity, even austerity. This can be achieved without in any way detracting from the provision of comfortable diverse facilities, trauma reduction and information for and as to the role of the visitor.
Although innocent until proved guilty, Defendants charged with criminal offences should not be given the impression that a visit to the Crown Court is a light-hearted or jolly event. That is in no-one’s interest, including those of the Defendant. Whilst the experience should be physically comfortable and informed, nothing should detract from the fact that it is a matter of importance.
The introduction of a dedicated "customer service team" (or whatever suitable name is applied to them) with a customer service manager may be a convenient and effective method for providing a consistent and efficient system for assisting those who are required to attend the Court. It is laudable to try and set standards of "service" but it should always be borne in mind that:
1. The administration of justice requires the involvement of many different agencies e.g. Police, Probation, Social Services, legal profession, other professions, public transport etc.
2. By definition the system invariably involves manipulative and evasive criminals who wish to serve only their own ends.
3. A criminal trial (or proceedings) is a fluid human event the precise progress of which cannot always be pre-judged, assessed or foreseen to a fine degree.
For many reasons, often unforeseen, the acts or omissions (some avoidable, some unavoidable) of one or more of the agencies listed above can lead to disruption or delay with consequences for witnesses and jurors.
For those reasons we doubt whether this is in fact an appropriate or productive area for a system of direct sanctions. As and when those visiting the Court are found to have received a substandard service it is vital:-
(a) That the reasons are accurately ascertained;
(b) That where appropriate the reasons are explained to the witnesses/jurors;
(c) That sanctions (if in force) should only be applied in the clearest and most appropriate circumstances and only by a Judge.
Defence and Prosecution witnesses should be treated with equal care and consideration which does not always occur at present. It is usually Prosecution witnesses who receive the most attention.
Witnesses it is conceded are often brought to Court only to wait for considerable periods of time, often in a state of ignorance, before they are required to give evidence. Sometimes they never give evidence and are sent away. There can be different reasons for this, some of which are unavoidable.
Unavoidable
(i) Unforeseen difficulties in a trial.
(ii) Non-attendance of a primary complainant or other significant witness.
(iii) Legal issues arising during the course of the trial requiring argument.
(iv) A shift of tactics for evidential reasons during the course of the trial (this applies equally to Prosecution and Defence).
Avoidable
(i) Witnesses are often required to attend on the basis of a list or batting order compiled weeks or months in advance on the basis that the trial Court must not run out of witnesses and that it will commence the trial at 10.30. On many occasions, often as late as 4.00 pm on the day preceding the trial the Court lists a large number of other cases (often pleas) thus rendering the start of the trial much later and at such a time that many, if not all, of the witnesses who have attended for 10.30 cannot possibly be reached. This cannot be laid at the door of those responsible for assessing the order of witnesses required for a day’s trial hearing.
(ii) The listing of large numbers of floating cases, many of which have little or no chance of being reached e.g. Bradford.
(iii) An unwillingness to give markings.
On the day
The MERIT system is to be welcomed. It is particularly important for a waiting witness to be kept informed of the likely time when he or she will be required to give evidence, although it may be that only those directly involved in the trial will have that precise information and sometimes even they may find prediction difficult depending on events in the trial. A half-hourly update may be an impracticable target to achieve. Broken promises may sometimes be more irritating to a waiting witness than a state of ignorance.
It would also be wrong to give visitors (witnesses or jurors) the impression that they will never be required to wait to serve or give evidence. Whilst it is desirable to keep any such time to a minimum (for which systems may be devised) it would be impracticable to assert to witnesses that they will never have to wait, although attempts can be made to minimise inconvenience.
The separation of Prosecution and Defence witnesses is a good thing. However, if there is an intimidation problem it is important that a member of the Prosecution or Defence legal representatives is informed immediately. They alone will be the most aware of the reasons for inter-witness tension and will be in the best position to offer advice to the Witness Service etc. as to how to approach problems which arise.
The counselling of witnesses should be available to a witness only after he or she has given evidence. Any attempt at such contact during the giving of evidence or before any evidence is given might have serious legal implications and prejudice the concept of justice being seen to be done. (We recognise that pre trial counselling of some complainants in sex cases is a different matter.) It is also vital that with the anticipated increased variety of contact between witnesses, jurors and Court staff that such staff as are responsible for informing witnesses of the progress of a particular case shall be fully trained as to the care needed not to fall into conversation about the detail of the progressing case itself or to respond to questions from a witness or juror as to what is or may be being said in Court in respect of which the waiting witness or juror may be crucially involved. This is particularly important when issues of admissibility are being aired before the Judge alone prior to the swearing of a jury or the calling of witnesses.
It should also never be forgotten when dealing with witnesses that sometimes the mere fact of their presence can affect the course of the case. In those circumstances, if they are not called they should never be allowed to think that their input has been wasted, overlooked or unappreciated. In many instances the very opposite is the case. Similarly, it is often the case that witnesses (either Prosecution or Defence) may be called to deal with the same factual circumstances. There are many reasons why several such witnesses may be required to attend. It can often arise that the evidence of the first such witness to be called will for various reasons suffice and the Court need not hear from the second or subsequent witnesses at all. Again, the role of the unused witness should not be overlooked.
We regard it as important to approach with care the large scale public display of what is described as the running order of all cases taking place in various Court rooms. Further detail of what is proposed in this regard would be welcome. It may be difficult to publish a protocol which actually standardises the grounds and time scale for seeking adjournments. Further information would also be welcome as to what is meant by the introduction of a witness video. The present video which is shown to jurors is an extremely carefully compiled and commendable piece of pre-trial information. Whatever is anticipated for witnesses may be in a slightly different category. Similarly, access to procedural information on the Internet is something which may often cause more confusion than enlightenment and should be approached with care. Whilst technology facilities for Solicitors and Barristers are to be welcomed, it would be appropriate for printing, faxing and photocopying facilities to be in a room common for the use of Solicitors, Barristers and Solicitor Advocates for that purpose but that where possible there should be the continued separation of Barristers and Solicitor Advocates from Instructing Solicitors.
Peter Collier QC
James Goss QC
Martin Rudland
27th October 1999 John Lodge
The authors of this response are all criminal practitioners on the North Eastern Circuit. Between them they have a cumulative 94 years of daily experience of the Crown Courts on that Circuit. 3 of them sit as Recorders in the Crown Court.
