Criminal proceedings: timely blueprint

Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings is a timely blueprint for improving our criminal justice system to make it suitable for the 21st century. I particularly welcome his emphasis on the use of IT (in particular video conferencing) to case manage, to facilitate access by lawyers to prisoners, and video hearings resulting in direction to the Legal Aid Agency to fund experts if the court so orders.  

The report also addresses case ownership, including the adjustment in favour of the ‘main trial advocate’ for payment purposes in the Crown court, be they solicitor or counsel. Hand in hand with this in terms of the pre-trial process, it cannot be right that a ‘culture of failure’ has developed in the courts, fed by an expectation that deadlines will not be met.

But let me look in turn at the principal recommendations.

First, the review welcomes early engagement between defence and prosecution. At the pre-charging stage, we need proper training for those responsible for charging on evidential requirements and on the Crown Prosecution Service (CPS) standards relating to appropriate levels of charge depending on the facts, and a review process for inappropriate charges.

For defence lawyers, it is frustrating that there is no pre-charge process to enable us to point out flaws in the Crown’s case and police thinking. Why is there no mechanism for input by the defence? This could reduce ‘over-charging’ and point up fatal flaws, legal or evidential, that are incapable of being repaired.

Second, the review identifies the issue of case ownership and failure to comply with time limits. But it does not provide an answer in the reliance upon local practices such as ‘naughty boy courts’, where the shame factor operates for recidivist non-compliers.

What will happen is that the poor prosecutor (let us not fool ourselves here, as it is the Crown which fails in 99% of the cases) will engage repeatedly in a hand-wringing exercise and say: ‘I am terribly sorry, we do not have the resources to cope with timely disclosure’ and so on.

It is true that the CPS is chronically underfunded and requires investment. But once given funds, failure to comply with the Criminal Procedure Rules must be dealt with robustly by the courts. The courts have failed to do so over and over again. They need to dismiss the prosecution case and award compensation from the CPS to the complainant for its failure to take the matter to trial.

Finally, the review pre-supposes the existence locally of a cadre of skilled solicitors as a consequence of the inherent complexity of the present system.

One cannot assume that defendants in person have access to video conferencing or that it is desirable for the CPS to engage in complex case management with them. Who will note the commitments by the Crown? How will complex issues be discussed with the defendant without giving advice that may or may not be appropriate? If the defendant has a solicitor whose office is based miles away, how will the video conference take place if there are transport or cost issues? One cannot expect firms to have a video conference facility in every town or village.  

Leveson makes clear that ‘part of the solution to improving the efficiency of the whole system is to acknowledge the critical role that the defence can play’ (on advising on discounts for early guilty pleas, or obtaining instructions to identify the true issues in dispute). His suggestion of drawing funds from other parts of the fee structure would just cause problems elsewhere.

What cannot be ignored is that proper funding of the defence is essential to achieving savings throughout the system and to other agencies. The lord chancellor said he would take this review into account when considering reform of legal aid. Well, now he has the answer. To give effect to the potential savings throughout the system, legal aid lawyers must be both adequately funded and locally based.

Bill Waddington is chair of the Criminal Law Solicitors’ Association