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06 May 2016

Managing criminal court cases - a change in direction

7 mins

Corporate Crime analysis: Amended Criminal Procedure Rules (CrimPR) and Criminal Practice Directions 2015 (Crim PD) came into force for all criminal courts in England and Wales on 5 October 2015. Martin Rackstraw, partner and joint head of department at Bindmans LLP, assesses the changes.

Original news

Criminal Practice Directions 2015 [2015] EWCA Crim 1567, [2015] All ER (D) 134 (Sep)

The Lord Chief Justice handed down the Crim PD. These replace the Crim PD given on 7 October 2013 (Criminal Practice Directions [2013] EWCA Crim 1631; [2013] 1 WLR 3164), as amended. Annexes D and E to the Consolidated CPD of 8 July 2002 (Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870, [2002] 2 Cr App R 35), as amended, which set out forms for use in connection with the CrimPR, remain in force. These Crim PD supplement many, but not all, parts of the previous Crim PD, and include other directions about practice and procedure in the courts to which they apply.

What are the key changes brought in by the new CPD?

Initially, they are in force in ‘early adopter’ courts. They will be implemented in all courts in England and Wales in due course. The amendments aim to provide for more efficient case management, for both contested trials and guilty pleas, according to a procedural regime that will be, as far as possible, uniform across all crown courts.

Cases where there has been, or will be, a guilty plea are to be identified as soon as possible. Where the magistrates’ court is considering committal for sentence, or where a defendant has indicated an intention to plead guilty in a matter which is to be sent to the crown court, the magistrates’ court should request the preparation of a pre-sentence report (PSR) for the crown court’s use, in a broad range of cases (Crim PD 3A.9). Where a defendant, having not done so before, indicates an intention to plead guilty to his representative after being sent to the crown court–but before the first hearing there–the defence should notify the court and prosecution immediately, and the crown court should request a PSR to be prepared for the first crown court hearing (Crim PD 3A.17).

For contested crown court trials, the previous preliminary and plea and case management hearings are abolished. Instead, all cases will be listed for a new plea and trial preparation hearing (PTPH) within 28 days of the case being sent. Prior to that hearing, a new PTPH form should be completed by prosecution and defence, and lodged at court. At the PTPH, the court will make directions for the management of the case to trial. It is anticipated that a further pre-trial hearing, now referred to as further case management hearing, will be listed only in identified complex cases (as set out at Crim PD 3A.21–for instance class 1 cases or class 2 cases carrying a maximum penalty of more than ten years or more, but in fact covering a very wide range of cases), or in the circumstances set out in CrimPR 3.13. In short, the regime aims at earlier and more comprehensive case management and fewer pre-trial hearings.

How significant are the changes and what impact will they have on lawyers and their clients?

The CrimPR and Crim PD amendments underpin the judiciary-led initiative ‘Better Case Management’, itself arising from the Leveson review of criminal proceedings. The emphasis continues to be on early identification of trial issues to allow more effective case management and to avoid unnecessary hearings.

In cases where there is to be an early guilty plea, the amendments might bring about some shortening of the time between charge and sentence.

For contested cases, the new PTPH itself is not itself a radical procedural development and in some respects is just the old PCMH, but earlier in the life of the case. The end of the largely ineffectual preliminary hearing is not significant. However, if a PTPH is to be held in every case within 28 days of the case being sent, defence lawyers will need to review the prosecution case, take instructions and be in a position to assist the court in managing and identifying the issues in the case more quickly than previously. The PTPH form requires the defence, for example, to identify ‘so far as known the
real issues in the case’ and confirm prosecution witness requirements.

The new provisions are, potentially, a further significant advance in judicial managerial involvement in cases, and an encroachment on the residual right of the defence to disclose its case, if at all, only once the prosecution has fully disclosed its own. This is because it appears that the defence will now be required to identify key issues in the case before a defence statement is served. To this extent, the new crown court regime follows the practice already being followed in contested summary matters.

What practical steps will lawyers need to take as a result of the rules?

Defence lawyers will need to be familiar with new rules and directions and in particular with the contents of the PTPH form. As suggested, instructions may need to be taken, and advice given, at an early stage in the life of the case. It is plain that it is expected that any non-compliance should be identified and monitored rigorously. It is also plain that the increased communication between defence, prosecution and courts is expected to be primarily, if not entirely, electronic.

However, it is likely that early case management will simply not be possible in many cases, and not just complex or serious ones. For one thing, it is not certain that the prosecution will always provide sufficient details of their case, to allow for meaningful case management at an early PTPH. Prosecutors are required to serve initial case details by the PTPH– and in bail cases by the first hearing in the magistrates’ court. This will include ‘statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management’ (Crim PD 3.A12 (b)). An indictment should be served seven days before the PTPH and at the PTPH, the prosecutor must now additionally serve ‘sufficient evidence to enable the court to case manage effectively without the need for a further case management hearing’ unless the case is identified as a complex one.

But even where prosecutors purport to comply with these disclosure obligations–and experience suggests that this may not be possible–it may well be that the defence will still not be in a position to assist the court to make meaningful case management decisions in the timescale currently  envisaged. Defence lawyers will need to carefully balance their duty to comply with the Crim PD and CrimPR, with their duty to protect their clients’  interests and to seek further disclosure from the prosecution.

How does this fit in with other developments in this area of law?

These changes reflect and progress the prevalent culture of case management and judicial proactivity in case preparation. The senior judiciary continues to try to minimise delay and wasted resources by applying more comprehensive case management rules, and requiring closer judicial scrutiny and enforcement of compliance. It is likely that we will see yet more amendments to the rules governing case management in the not too distant future. It is likely too, that electronic working will become universal. However, in the absence of any injection of funding directed at either prosecuting agencies or legal aid, it remains uncertain as to whether such procedural changes will achieve the desired results.

This article was first published by LexisNexis PSL.

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