Ignorance is bliss

I admit, behind bars is badly behind the zeitgeist on this one. My excuse, feeble as it is, is that practically everyone else is as well. I do have one famously brilliant instructing solicitor who called me in the first week of May 2010 to get my learned counsel's advice on witness notification and whether we had formed the intention to call any. As I know her well, I was able to say, hand on heart and with every appearance of integrity, that I had absolutely no idea what she was talking about.

Mired in ignorance as I was, it is comforting to know I was not alone: the Law Society only issued a practice note on how to deal with the pesky issues on 27 January.

They arise from section 34 of the Criminal Justice Act 2003, which introduced the new section 6c into the disclosure regime of the Criminal Procedure and Investigations Act 1996. That section, in force on 1 May, makes it mandatory for the defence to notify the Crown about what defence witnesses they want to call in any trial committed or sent to the Crown Court after that date, or where there is a not guilty plea made after 1 May in a summary trial. This provision puts the common or garden witness into the same category as alibi witnesses.

Their names, addresses and dates of birth have to be forwarded to the Crown within strict time limits, triggered, as are defence case statements, by the service of primary disclosure by the Crown. This is likely to be double dutch to those readers whose idea of fun is a toothsome conveyancing, or a meaty point on the construction of a contract '“ but, to my fellow toilers in the dank marshes of the CJS, I do, truly, feel your pain.

Bearing the burden

The obligation to prepare a defence case statement is hard enough within the time limits set: 14 days after service of primary disclosure by the Crown. One can apply for an extension, timeously and with reason: HHJ Nicejudge will probably grant it, HHJ Nastyjudge will probably not. And HHJ Perfectjudge who, naturally, never puts a foot wrong in practice himself, gleefully casts the first stone and orders the DCS be filed and served by 10am the next day even if the Crown have barely told the defence what the charge is.

The burden of preparing a defence case statement frequently now falls on the barrister instructed, rather than the solicitor. It is now not uncommon for one's brief to read like an instruction manual for a first year law student mugging up on criminal procedure.

Counsel will attend, on time, with a clean shirt and eager expression, will meet and greet every family member of the defendant. They will inform the solicitor by phone, email, tweet, in blood and in writing of every twist and turn of the case as it occurs and will take a full note of all words spoken in court while cross-examining weeping victims.

There is, however, no point in whining, however enjoyable. These are challenging times ('challenging' being CJSish for 'hideous') and, if the solution for some hard-pressed firms is to ask the barrister to do more than we might like, well, there is always a job at McDonalds if we object.

Recipe for abuse

The new witness notification regulations not only add to the burdens but signal yet another change in the balance of power between the Crown and the defence. The explanatory note says that the requirement to notify is so that the Crown can check the previous convictions of the witness and prepare any application they may want to get their bad character before the court.

Fair enough, although checking pre-cons is now only a phone call away, but the real meat of this provision is that the police can interview the witness and take their own statement from them. That recipe for abuse is modified by a code of practice made under section 21a of the Criminal Procedure and Investigations Act to which police must have regard. Under the code they have to notify the defence that they want to interview, give them opportunity to attend, and let the witness be separately represented if he chooses.

Any extra funding? No. In Crown Court cases the costs are deemed part of the litigator's standard fee. If solicitors don't attend, what provision is there for ensuring the interview is properly conducted? Er, none. If a statement is taken which contradicts or nullifies the statement given to the solicitor, the police have no duty to disclose it to the defence: it neither undermines the Crown nor assists the defence.

Neither do they have to provide a record of the interview. It was suggested during debates that such interviews should be audio recorded, but that sensible and economic idea went no further.

Recording all police statement taking should be standard practice, as is recommended for 'significant witnesses' under best evidence protocols. That simple and easy reform is sorely needed, for equality of arms if nothing else.