It's good to talk

This year began with the launch of the Better Case Management (BCM) Revival Handbook.

The Revival Handbook is built on the expectation of engagement between all parties. In short, the CPS and the defence ought to be in contact to progress cases as efficiently as possible.

BCM has significant, and lasting, support from the senior presiding judge (Lord Justice Edis), but the response to a recent FOIA request by my firm Kingsley Napley suggests that historic difficulties are present once again.

As the name suggests, the Revival Handbook is not the first attempt at BCM. It started life in 2015 with the core principles including the importance of having clear and identifiable case owners who would engage with each other at the earliest opportunity.

Around a year later, an HMCPSI snapshot report found the level of engagement as ‘inconsistent’, ‘not very effective’ and that a ‘real cultural shift’ was required.

In 2018, further BCM guidance was issued again pushing for proactive communication and direct engagements. Named contacts, able to make decisions on the case, were required.

For the Revival Handbook, the position is:

'…it is important that, at the earliest opportunity, prosecution and defence provide the name of the legal representative who has conduct of the case; their telephone number; and their CJSM email address. The prosecution should also provide the contact details for the Officer in the Case. A generic email address is not appropriate. If that named legal representative is away from the office for any length of time (such as when on leave), an out-of-office message should be left providing alternative contact details. The prosecution is expected to provide similarly specific named details….'

Seven months after the launch of the Revival Handbook, we sent the CPS an FOIA request for the direct contact details for CPS reviewing lawyers. Reference was made to paragraph 5 of the Revival Handbook (the duty of direct engagement and case ownership).

The CPS replied to say that the information was exempt from disclosure and withheld.

The CPS response noted that the name of the reviewing lawyer is already provided in not guilty anticipated plea cases - hardly a panacea when this is often simply an initial and a surname.

The response also set out that the CPS send the details of their central mailbox email account and that processing incoming requests in the way alluded to in our letter (presumably, direct contact) would be '…outside of our stated processes and would bypass our Case Management Systems.'. It is a mystery how this fits with the inappropriateness of a generic email address.

The CPS response is disappointing in two aspects. The first is that it appears that the CPS’s case management system is a potential blocker for change. IT inefficiency is a constant difficulty in the criminal justice system, but pragmatic solutions must surely be available – like copying the central mailbox to direct emails.

The second is that the response hints at a continued reluctance to change. Half a decade later, the necessary ‘real cultural shift’ appears to be moving at a glacial pace.

There is always a risk in forming views on an organisation’s culture by extrapolating out from a single letter. It is also right to recognise that many reviewing lawyers will choose, themselves, to provide their direct contact details. However, the concern here is the blunt and overall rationale.

In the forward to the Revival Handbook, the senior presiding judge wrote: '…those who practice in criminal law MUST apply these principles.' The capitalisation of ‘must’ is as in the forward. It is a purposeful emphasis and plainly not one which was meant to be reliant on individuals or to stall so quickly on the speed bumps of technology and convenience.

Proper engagement with the Revival Handbook is a matter which can only be achieved by the CPS as an organisation. Without this, the wait for the ‘real cultural shift’ will go on.

Matt Hardcastle is partner in the criminal litigation team at Kingsley Napley LLP