Sunday, 17 August 2014

An Open Letter to Lord Justice Leveson & HH Geoffrey Rivlin QC

It is incumbent upon anybody with even a passing interest in the proper functioning of the Criminal Justice System (CJS), and frankly that should be all of us, that they do not miss the opportunity to provide their views and opinions on how the CJS could be improved.  You can feed into Lord Justice Leveson's review here: and HH Geoffrey Rivlin QC's review here (barristers only):

This is the letter I have drafted:

These are my suggestions in bullet point for potential ways in which the efficiency of the Criminal Justice System could be improved.  I offer them in a purely personal capacity conscious that many others will have made similar suggestions and acknowledging that many of these ideas are not new and that some may be quite controversial.

Underpinning my observations about improvements to the trial process is a belief that advocacy is the art of persuasion not administration and that if advocates are not in court seeking to persuade a judge or a jury then it is difficult to discern the purpose of their being in court.



  1. Police Bail – this may not strictly be within the purview of your review but prolonged periods of police bail are capable of bringing the CJS into disrepute and of course are capable of building in delay before a case even comes before the courts.  It is unclear what mechanism there is properly to scrutinise why suspects are bailed for as long as they are on a case by case basis.
  2. Police Cautions – there has been in recent years occasional media reporting expressing disquiet about the apparent proliferation in the use of Police Cautions and again it is unclear who or what body is responsible for scrutinising whether policies regarding the use of Police Cautions are being properly and consistently applied across the country.


  1. Case ownership – the Crown Prosecution Service appears to have reversed a policy it introduced a number of years ago of dispensing with allocated lawyers.  My perception is that this policy encouraged a problematic abandonment of responsibility for cases.  The CPS requires sufficient resources that every case it prosecutes is ‘owned’ by a lawyer whose name, email address and telephone number is clearly identified to the court and all lawyers in the case.  The same should also be true for the officer in the case and the CPS caseworker.
  2. Selection of charges – again this is not strictly a question of efficiency but concern has been expressed that as well as over-zealous diversion from the courts some cases that come before the courts are undercharged in circumstances, for example, where injuries that properly amount to grievous bodily harm have resulted in actual bodily harm prosecutions or where an incident that could properly be charged as robbery is charged as theft from the person.
  3. Response to charge – the very recent past has seen a concerted effort to apply Early Guilty Plea schemes across the country.  Might there not be further efficiencies to be derived from inviting suspects at the point of charge to indicate whether they are willing to tender a plea on the spot?  Almost all custody areas have the benefit of CCTV recording which would be a safeguard against any abuse of such a scheme and it would enable magistrates’ courts to dispose of cases even more quickly if defendants appeared before them having already pleaded guilty.

Magistrates’ court

  1. Summary trial – others may be better placed to offer suggestions about accelerating the process in the magistrates’ courts and observations I will make about increased use of video links in the Crown Court apply as much to the magistrates’ courts.  Certainly the need for identifiable case ownership by individual lawyers within the CPS would ensure that contested trials in the magistrates’ court proceed much more efficiently.
  2. Sending for trial – the abolition of committal proceedings seems to confer a negligible saving if every Crown Court trial now requires a Preliminary Hearing.  Magistrates’ courts should be able to make all necessary directions regarding service of the Crown’s case and the defence statement at the point of sending cases for trial.

Crown court

  1. Abolition of Preliminary Hearings – as adverted to above it is unclear why it is necessary for these hearings to take place if all orders could be made by the lower court.
  2. Abolition of PCMH – This is a bold suggestion.  However if the premise regarding oral advocacy being the application of persuasion holds true then it would seem there is scope in many cases to avoid a court hearing.  If a defendant wishes to plead guilty following the sending of his case for trial then the onus should be on him and his legal representatives to communicate that intention to the CPS and court at the earliest possible moment to enable the guilty plea to be offered.  If a defendant is resolute in a not guilty plea then his case can be fixed for trial with arraignment occurring at the start of the trial.  A huge amount of the business of a PCMH could and should be resolved electronically and time spent by judges administering cases from their computers rather than the Bench could enable a huge saving to the public purse and to the time of advocates, court staff and defendants.
  3. Sanctions – the reason why the abolition of PCMHs sounds such a far-fetched proposal is that the judiciary has learnt from long experience that often the only means of ensuring that judicial directions are adhered to is to compel the parties into the courtroom.  However the existence of a meaningfully applicable costs sanctions regime against the CPS and defence lawyers could well prove to be a much more effective remedy than expressions of judicial wrath from the Bench.
  4. Identification and selection of advocate – echoing the earlier observation about case ownership there would appear to be more scope for judges to oversee more definite identification of the advocates for a case at the earliest possible juncture.  Both the CPS and defence firms, much more often than they ought, return cases for trial to the self-employed Bar at a very late stage in proceedings.
  5. Video links – when a defendant is in custody it is unclear why pre-trial hearings should not be conducted by video link by default.  Furthermore if advocates have appropriate facilities it would seem to save a great deal of time and money if they were to be able to appear before the court electronically from their homes or workplaces.
  6. Warned Lists – it may be that there has been substantive analysis of the savings that have accrued from the operation of a warned list system but it is something that comes as a shock even to barristers practising in the civil law that criminal cases are listed in such a nebulous way.  The warned list system can do a great disservice to victims, witnesses, defendants and, of course, advocates.  A hospital would not, I venture to suggest, countenance saying to a patient that his or her surgery may occur on any given weekday over a fortnight and it is unclear why the CJS believes this is an appropriate way to treat victims of sometimes very serious crimes.  Furthermore case ownership and preparation by litigators and advocates is cemented by the knowledge that a case is fixed in their diary for their availability.  The all too common phenomenon of defendants being absent for trial because they claim they were not warned that their trial had come into the list would be ended.  A number of courts systematically list cases for mention following warned lists in which they have not been reached.  This seems to be a particularly unnecessary use of court time.
  7. Trial in absence – defendants are clearly warned that their trials may proceed in their absence and yet this seems to occur only in a very small minority of cases where the defendant does not present himself for trial.  Again in the civil jurisdiction judges would be extremely slow to adjourn proceedings because one of the parties did not present themselves for trial on the date and time appointed.
  8. Internet access in courts – I hope the need for this is self-evident.  However beyond the facilitation of communication there are often evidential matters that arise that could be resolved on the spot in the courtroom.  For example in robbery and assault cases when accounts are given of the movements of the parties rather than laborious recourse to maps and printouts a properly equipped courtroom would enable a street view tour to be given to the jury.  It is conceivable that in some cases this could obviate the need for hugely expensive and time consuming site visits.
  9. Reviews of the evidence – American judges find it extremely surprising that their English counterparts are called upon to summarise evidence to juries.  Is there not an argument to be made that summings up should be reduced in all cases to writing without evidential reviews?


  1. Presence of defendant – in cases where judges agree to an application by the defendant to be sentenced by video link would this not save time and money.