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Two years on, how have collective efforts to make every court hearing count evolved? Peter Hungerford-Welch summarises the procedural changes and the message from case law
It’s been two years since the early adopters embarked on the better case management (BCM) initiative, which was rolled out nationally in January 2016, to improve evidence handling and case management in relation to Crown court proceedings. My earlier article for Counsel looked at its introduction (‘Getting it right first time’, November 2015). The scheme has continued to evolve alongside the considerable reforms taking place within the criminal justice system (such as increasing use of IT). This article summarises recent updates for criminal practitioners.
The aims of BCM are as follows:
The BCM Newsletter 12 (Senior Presiding Judge, 28 March 2017) focused on Streamlined Forensic Reporting (‘SFR’). This is relevant particularly in cases involving fingerprint identification; DNA matches; footwear comparison; drug identification, purity and valuation; and toxicology. SFR comprises two stages. Stage 1 involves the provision of a short report, setting out the initial key findings. It is not a witness statement, nor is it an expert’s report (and so the rules on expert reports do not apply). This stage should provide sufficient information for the purposes of charging and for case management hearings. The SFR1 asks the defence to identify any real issue in relation to the evidence, such that an admission cannot be made, at the ‘earliest possible stage’ (this is an aspect of the duty created by rr. 3.2 and 3.3, requiring each party to ensure a timely identification of the issues in the case).
Where the SFR1 is not agreed, the defence must (pursuant to r 19.3(2)) serve a response stating which, if any, of the expert’s conclusions are admitted and which are disputed, together with an explanation of why the defendant does not accept the conclusions that are disputed. An example given in the Newsletter is a case where the evidence shows that the defendant’s DNA was found at the scene of the crime but the defendant maintains their innocence, arguing that the DNA does not establish guilt (as there may be an innocent explanation for the DNA being found at the scene).
At the second stage, a form is produced to answer the issue(s) raised by the defence in response to the SFR1. Under r 19.3(3), SFR2 evidence is presented in the form of a witness statement, with an expert’s declaration under r 19.4(j) and Criminal Practice Direction 19B. Where expert evidence is not agreed, Criminal Practice Direction 19C requires the parties to consider, at an early stage, whether it would be useful to hold an experts’ discussion.
Part 8 of the Criminal Procedure Rules was amended, from 3 April 2017 (Criminal Procedure (Amendment) Rules 2017, SI 2017/144), to include a new r 8.4, which applies where the prosecutor wants to introduce information contained in a document that should be disclosed under r 8.3, but has not served that document on the defendant (or otherwise made that information available to the defendant). In such cases, the court ‘must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it’. This reinforces the importance of compliance with disclosure obligations.
Rule 3 of the Criminal Procedure Rules is amended, from 2 October 2017 (Criminal Procedure (Amendment No. 3) Rules 2017, SI 2017/755), by the insertion of a new provision (r 3.13(2)):
‘At the plea and trial preparation hearing the court must –
(a) satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), that the defendant will receive credit for a guilty plea;
(b) take the defendant’s plea or if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty;
(c) unless the defendant pleads guilty, satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), that at the trial –
i. the defendant will have the right to give evidence after the court has heard the prosecution case,
ii. if the defendant does not attend, the trial may take place in the defendant’s absence,
iii. if the trial takes place in the defendant’s absence, the judge may inform the jury of the reason for that absence, and
iv. where the defendant is released on bail, failure to attend court when required is an offence for which the defendant may be arrested and punished and bail may be withdrawn; and
(d) give directions for an effective trial.’
Advice on the reduction in sentence for a guilty must, of course, be worded carefully, so defendants understand that they should plead guilty only if they are in fact guilty. The warning about trial in the absence of the defendant is likely to be used as the basis for saying defendants who fail to attend court have waived their right to be present. Similar provision will be made in respect of magistrates’ court trials as a result of a new rule on preparation for trial hearings (r. 3.27, added by the The Criminal Procedure (Amendment No. 4) Rules 2017 (SI 2017/ 915), from 13 November 2017).
R (Hassani) v West London Magistrates’ Court [2017] EWHC 1270 (Admin) concerned the taking of what were regarded as unmeritorious points in a drink-driving case. Echoing the oft-cited words of Auld LJ in R v Gleeson [2003] EWCA Crim 3357 (at [36]), Irwin LJ says (at [9]): ‘The criminal law is not a game to be played in the hope of a lucky outcome, a game to be played as long and in as involved a fashion as the paying client is able or prepared to afford.’ He goes on (at [10]) to say that the Criminal Procedure Rules ‘are there to be employed actively so as to preclude game playing and ensure that the courts only have to address real issues with some substance’, adding (at [11]): ‘Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party’s lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it.’
Attention is drawn (at [12]) to effect on the defence of the duty to cooperate in the achievement of the overriding objective: ‘If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.’
There will inevitably be cases where advocates have to put forward arguments that have only a limited prospect of success. So long as the point is properly arguable, given the law and the available evidence, advocates should not be deterred from pressing that point. However, the clear message from the case law is that advocates must make sure that the other side, and the court, are given proper notice of points being taken, and must also avoid taking up valuable court time with arguments that have no realistic prospect of success.
The Criminal Practice Directions are amended (with effect from 2 October 2017) with the addition of a new direction, CPD V Evidence 18E, on pre-recording of cross-examination and re-examination for witnesses. This takes account of the experience gained from the pilot of s 28 at Leeds, Liverpool and Kingston Crown Courts.
At the PTPH, ‘the defence should identify the core issues in dispute’ (para 18E.18). Paragraph 18E.20 emphasises the importance of the ‘correct and timely’ application of the disclosure requirements laid down by the Criminal Procedure and Investigations Act 1996. Paragraph 18E.22 stipulates that the ground rules hearing will usually be soon after the deadline for service of the defence statement, and the recorded cross-examination and re-examination hearing about one week later. However, it adds that time must be allowed for any further disclosure of unused material following service of the defence statement and for determination of any application for disclosure under s 8 of the CPIA 1996. Paragraph 18E.24 says that, as far as possible but without diminishing the defendant’s right to a fair trial, the timing and duration of the recorded cross-examination should take into account the needs of the witness.
Paragraph 18E.32 emphasises that advocates should master the ‘toolkits’ available through The Advocate’s Gateway. Any appointed Registered Intermediary must attend the ground rules hearing (para 18E.33). The defence advocate at the ground rules hearing must be the advocate who will conduct the recorded cross-examination (para 18E.34). The ground rules hearing will need to include discussion of the overall length of cross-examination; in a multi-handed case, cross-examination by a single advocate; and any restrictions on the advocate’s usual duty to ‘put the defence case’ (para 18E.35). It may also be helpful to discuss how any limitations on questioning will be explained to the jury (para 18E.36).
Peter is Assistant Dean at the City Law School, teaching on the BPTC and the LLM programme. He writes in Blackstone’s Criminal Practice (OUP) and theCriminal Law Review, and is author of Criminal Litigation and Sentencing (Routledge, 8th edition).
It’s been two years since the early adopters embarked on the better case management (BCM) initiative, which was rolled out nationally in January 2016, to improve evidence handling and case management in relation to Crown court proceedings. My earlier article for Counsel looked at its introduction (‘Getting it right first time’, November 2015). The scheme has continued to evolve alongside the considerable reforms taking place within the criminal justice system (such as increasing use of IT). This article summarises recent updates for criminal practitioners.
The aims of BCM are as follows:
The BCM Newsletter 12 (Senior Presiding Judge, 28 March 2017) focused on Streamlined Forensic Reporting (‘SFR’). This is relevant particularly in cases involving fingerprint identification; DNA matches; footwear comparison; drug identification, purity and valuation; and toxicology. SFR comprises two stages. Stage 1 involves the provision of a short report, setting out the initial key findings. It is not a witness statement, nor is it an expert’s report (and so the rules on expert reports do not apply). This stage should provide sufficient information for the purposes of charging and for case management hearings. The SFR1 asks the defence to identify any real issue in relation to the evidence, such that an admission cannot be made, at the ‘earliest possible stage’ (this is an aspect of the duty created by rr. 3.2 and 3.3, requiring each party to ensure a timely identification of the issues in the case).
Where the SFR1 is not agreed, the defence must (pursuant to r 19.3(2)) serve a response stating which, if any, of the expert’s conclusions are admitted and which are disputed, together with an explanation of why the defendant does not accept the conclusions that are disputed. An example given in the Newsletter is a case where the evidence shows that the defendant’s DNA was found at the scene of the crime but the defendant maintains their innocence, arguing that the DNA does not establish guilt (as there may be an innocent explanation for the DNA being found at the scene).
At the second stage, a form is produced to answer the issue(s) raised by the defence in response to the SFR1. Under r 19.3(3), SFR2 evidence is presented in the form of a witness statement, with an expert’s declaration under r 19.4(j) and Criminal Practice Direction 19B. Where expert evidence is not agreed, Criminal Practice Direction 19C requires the parties to consider, at an early stage, whether it would be useful to hold an experts’ discussion.
Part 8 of the Criminal Procedure Rules was amended, from 3 April 2017 (Criminal Procedure (Amendment) Rules 2017, SI 2017/144), to include a new r 8.4, which applies where the prosecutor wants to introduce information contained in a document that should be disclosed under r 8.3, but has not served that document on the defendant (or otherwise made that information available to the defendant). In such cases, the court ‘must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it’. This reinforces the importance of compliance with disclosure obligations.
Rule 3 of the Criminal Procedure Rules is amended, from 2 October 2017 (Criminal Procedure (Amendment No. 3) Rules 2017, SI 2017/755), by the insertion of a new provision (r 3.13(2)):
‘At the plea and trial preparation hearing the court must –
(a) satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), that the defendant will receive credit for a guilty plea;
(b) take the defendant’s plea or if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty;
(c) unless the defendant pleads guilty, satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), that at the trial –
i. the defendant will have the right to give evidence after the court has heard the prosecution case,
ii. if the defendant does not attend, the trial may take place in the defendant’s absence,
iii. if the trial takes place in the defendant’s absence, the judge may inform the jury of the reason for that absence, and
iv. where the defendant is released on bail, failure to attend court when required is an offence for which the defendant may be arrested and punished and bail may be withdrawn; and
(d) give directions for an effective trial.’
Advice on the reduction in sentence for a guilty must, of course, be worded carefully, so defendants understand that they should plead guilty only if they are in fact guilty. The warning about trial in the absence of the defendant is likely to be used as the basis for saying defendants who fail to attend court have waived their right to be present. Similar provision will be made in respect of magistrates’ court trials as a result of a new rule on preparation for trial hearings (r. 3.27, added by the The Criminal Procedure (Amendment No. 4) Rules 2017 (SI 2017/ 915), from 13 November 2017).
R (Hassani) v West London Magistrates’ Court [2017] EWHC 1270 (Admin) concerned the taking of what were regarded as unmeritorious points in a drink-driving case. Echoing the oft-cited words of Auld LJ in R v Gleeson [2003] EWCA Crim 3357 (at [36]), Irwin LJ says (at [9]): ‘The criminal law is not a game to be played in the hope of a lucky outcome, a game to be played as long and in as involved a fashion as the paying client is able or prepared to afford.’ He goes on (at [10]) to say that the Criminal Procedure Rules ‘are there to be employed actively so as to preclude game playing and ensure that the courts only have to address real issues with some substance’, adding (at [11]): ‘Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party’s lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it.’
Attention is drawn (at [12]) to effect on the defence of the duty to cooperate in the achievement of the overriding objective: ‘If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.’
There will inevitably be cases where advocates have to put forward arguments that have only a limited prospect of success. So long as the point is properly arguable, given the law and the available evidence, advocates should not be deterred from pressing that point. However, the clear message from the case law is that advocates must make sure that the other side, and the court, are given proper notice of points being taken, and must also avoid taking up valuable court time with arguments that have no realistic prospect of success.
The Criminal Practice Directions are amended (with effect from 2 October 2017) with the addition of a new direction, CPD V Evidence 18E, on pre-recording of cross-examination and re-examination for witnesses. This takes account of the experience gained from the pilot of s 28 at Leeds, Liverpool and Kingston Crown Courts.
At the PTPH, ‘the defence should identify the core issues in dispute’ (para 18E.18). Paragraph 18E.20 emphasises the importance of the ‘correct and timely’ application of the disclosure requirements laid down by the Criminal Procedure and Investigations Act 1996. Paragraph 18E.22 stipulates that the ground rules hearing will usually be soon after the deadline for service of the defence statement, and the recorded cross-examination and re-examination hearing about one week later. However, it adds that time must be allowed for any further disclosure of unused material following service of the defence statement and for determination of any application for disclosure under s 8 of the CPIA 1996. Paragraph 18E.24 says that, as far as possible but without diminishing the defendant’s right to a fair trial, the timing and duration of the recorded cross-examination should take into account the needs of the witness.
Paragraph 18E.32 emphasises that advocates should master the ‘toolkits’ available through The Advocate’s Gateway. Any appointed Registered Intermediary must attend the ground rules hearing (para 18E.33). The defence advocate at the ground rules hearing must be the advocate who will conduct the recorded cross-examination (para 18E.34). The ground rules hearing will need to include discussion of the overall length of cross-examination; in a multi-handed case, cross-examination by a single advocate; and any restrictions on the advocate’s usual duty to ‘put the defence case’ (para 18E.35). It may also be helpful to discuss how any limitations on questioning will be explained to the jury (para 18E.36).
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