New year, new rules

The Criminal Procedure Rules are revamped and ready to roll out in April 2012. These rules are meant to be, for us criminally minded hacks, a light to shine upon the world, a hand to hold in the darkening gloom, a map to chart us through the tangled thickets of the forest... and as such they are, of course, generally ignored. There are judges who live and breathe them, particularly if the defence have fallen down on the job, missed a time limit or otherwise failed in perfection. There are one or two judges who are not above actually quoting them at one, like poetry: the overriding objective of the rules, according to those eager beavers, is for the judge to 'case manage' and make sure everyone gets a move on, now, sharpish, chop chop. Not wasting court or judicial time and making advocates' lives even nastier places to be might seem, in some courts, to be the point of the beastly things '“ but a mere flicker of the eye towards rule 1.1 tells a softer, kinder, tale.

'The overriding objective of this code is that criminal cases be dealt with justly.' Just dealing involves acquitting the innocent and convicting the guilty; dealing with the prosecution and defence fairly; recognising the rights of a defendant, including article 6 rights; respecting the interests of witnesses, victims and jurors...

It is not until 1.1(e) that efficiency and expedition get a look in. Splendid qualities in their own right of course, but best that they know their place as the servitors of just dealing.

Rule 1.2 sets out the duties of the participants in a criminal case, and onerous they are too. Rule 1.2 requires that each participant in the conduct of each case must prepare and conduct the case according to the overriding objective, must obey the rules, and must at once tell the court and all other parties if there has been any significant failure to comply with the rules or directions made, whether this is their fault or not. I doubt I am alone in having rather skipped through those bits before, in a sweaty search for the time limits one might have missed, but, properly read, these rules are truly a blue print for a great system. What they really mean is that when, for example, the CPS has failed to read far less answer a defence case statement they must report themselves to the court and all other parties, 'fess up and bear the consequences. At present, the CPS, and, indeed, (in the spirit of fair dealing exemplified by these rules) defence lawyers, only really contact the court by way of begging letters: 'Please sir, can we have more time?' is the general tenor of that song.

Change afoot

Imagine a system where a prosecutor, or police officer as they equally bound as participants too under the rules, knew they had to tell everyone else involved if they were aware of a failure that might hinder the overall objectives of the trial! This would mean disclosure of information months before it is finally bludgeoned out of the Crown on the day of trial '“ statements served when they are made rather than weeks later '“ information exchanged before a threatening letter is sent '“ it might even mean decisions to discontinue or amend charges being made before the last possible minute; as it is, case preparation limps on with a CPS that is, in the main, purely reactive. We all move when we are prodded with a sharp stick, but it is both more elegant and more constructive to stir one's stumps voluntarily. And, when voluntariness falters, rule 3.8 sets out the court's duty: where a direction has not been complied with, they have to find out why, identify who was responsible and 'take appropriate action'.

Now, there's a thought. Other than eye rolling and the odd snippy remark, most judges now seem resigned to the more or less endless cockups, mishaps and incompetencies that bedevil their courts, but, properly applied, these rules could make for a good degree of harmless fun: can 'appropriate action' include the cells? Or a system of forfeits perhaps? One minor failure lands you a bill for lunch for your opponent, two failures means a slap-up dinner for the defendant, three results in your fee going to charity.

Losing the CCTV means chucking your hand in, even if it is irrelevant '“ if it was relevant lose the case plus double Glenfiddichs for all. To be serious '“ although a decent malt is a thing of seriousness as well as beauty '“ the revised rules make some substantive changes. Now we have learned to love them, we will return to them in time. Within time. And with efficiency.

Copyright & permissions