Simpler, speedier justice for all?

Fora government obsessed with presenting policy with a spin and a pathological interest in reforming criminal justice, the implementation of the CJSSS (Simple, Speedy, Summary, Criminal Justice) must be the autumn's big idea in Whitehall. CJSSS is the latest instalment in the government's criminal justice vision and aims to significantly reduce delay in cases conducted before adult magistrates' courts which have been commenced by charge.

A key feature of CJSSS is to ensure that the first hearing is always an effective hearing at which the defendant will be required to enter his plea. It is anticipated that when charged at the police station the defendant will be provided with advance information and an information sheet informing the defendant that the court will expect a plea to be entered on first appearance and that legal advice should therefore be sought without delay. Custody officers will be required to encourage suspects to have early access to legal representation at the police station as courts will not be sympathetic to a defendant who was unrepresented at the police station and on this basis seeks an adjournment at the first hearing.

CJSSS will require an effective and efficient partnership between the police and the Crown Prosecution Service to ensure prompt availability of advance information after charge. It will require the co-operation of defence solicitors and court administrative staff as well as robust case management by the courts.

With increasing use of 'same-day' fast delivery pre-sentence reports, it is anticipated that there will be a significant increase in the number of cases disposed of at the first hearing where a guilty plea is entered.

On a not guilty plea the court will be required to identify the issues between the parties and will expect accurate information as to witness availability. It is understood that the court will be provided with a copy of the advance information and will challenge the defence to agree evidence wherever possible and to avoid the need to call multiple witnesses.

Prosecutors will be expected to anticipate any special measures, hearsay and bad character applications. Court chairmen and district justices will be robust in ensuring such information is available. As there is a requirement that trials should take place between 6 to 10 weeks following first hearing, the reliance on early case preparation will mean fewer pre-trial hearings and in theory less delay.

Pilot schemes

When announcing the results of the four pilot schemes in February the-then Lord Chancellor, Lord Falconer said that CJSSS: 'Provided a clear demonstration of what can be achieved when all of the agencies involved in criminal justice worked together in a simpler, faster, more focused way'. Under the pilot scheme the average time taken between charge and conclusion was more than halved to 23 days.

There was a 30 per cent increase in guilty pleas at first hearing '“ and 59 per cent of guilty pleas were dealt with at the initial court appearance. Even where disposal at the first hearing was not possible, 70 per cent of contested cases were concluded at the second hearing. In anticipation of CJSSS, a revised Adult Criminal Case Management Framework document has been published.

Defence dilemmas

While the more effective use of resources will be welcomed by all participants in the criminal justice system, the push for greater efficiency should not be achieved at all costs '“ not least at the expense of an accused's legitimate right to a fair trial. Inextricably linked to this right are the defence solicitor's professional conduct obligations to his client and the well established boundaries of legal professional privilege.

Unless the profession is vigilant, the culmulative effect of CJSSS and active case management by the courts under Part 3 of the Criminal Procedure Rules may further undermine the accused's traditional immunities and the essential independence and professional integrity of the defence solicitor.

A number of recent decisions have held that defence solicitors do have a duty to actively assist in the management of cases before the criminal courts in accordance with the overriding objective in Part 1 of the Criminal Procedure Rules.

In R v Gleeson [2003] EWCA Crim 3357 Lord Justice Auld reiterates the observations made in his Criminal Courts Review Report 2001 that: 'A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.'

In R (on the application of DPP) v Chorley [2006] EWHC 1795, the failure of all parties, including the court, to ascertain the actual issues in an excess alcohol case, led the High Court to state: 'If a defendant refuses to identify what the issues are, one thing is clear: he can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last-minute technical points are gone. They are inconsistent with the overriding objective'.

How do these new pressures sit with the defence solicitor's core professional conduct duties of confidentiality, conflict of interest and to act in the client's best interests? The latter may conflict with the duty to actively assist the court. Tactically it may benefit your client to withhold information knowing that the prosecution may not be in a position to prove its case at trial.

The Solicitors Code of Conduct is not entirely helpful in simultaneously advising solicitors that, as officers of the court, they must obey court orders; uphold the proper administration of justice and at the same time act in the best interests of their client.

In a timely publication the Law Society has recently issued a practice note entitled Criminal Procedure Rules: Impact on Solicitors' Duties to the Court (16 August 2007). Its publication coincided with the important decision in R (on the application of Kelly) v Warley Magistrates Court (the Law Society intervening) [2007] EWHC 1836. In Warley, the deputy district judge (DDJ) directed the defence solicitor to disclose the identity of defence witnesses in advance of trial. (The power to require this is contained in a provision under the Criminal Procedure and Investigations Act 1996 but has never been brought into force.) The DDJ justified his direction under Part 3 of the Criminal Procedure Rules (CPR) as pre-trial disclosure would allow the prosecution sufficient time to explore the credibility of the defence witnesses, which, in turn would assist in the efficient management of the case.

Requiring a defence solicitor to disclose details of defence witnesses overrides legal professional privilege (LPP). The divisional court held that unless the statute expressly or by necessary implication allowed LPP to be overridden (which the CPR do not), the court had no power to override LLP.

The Law Society's practice note decrees that defence solicitors must assist the court to meet the case management objectives of the CPR but only to the extent that what is requested of the solicitor is consistent with his client's entitlement to the presumption of innocence and legal professional privilege, both of which are fundamental Article 6 rights recognised by the overriding objective.

The combined effect of CJSSS and recent court decisions means it will become increasingly difficult for defence solicitors to play the tactical game. Even though there is no statutory requirement to serve a defence statement in summary cases, the defence will be expected to identify what aspects of the prosecution's case it takes issue with '“ it will not be enough for the defence to say 'we simply wish to put the prosecution to proof of its case'.

The obligation to actively assist the court's management of a case extends to promptly informing a court of any failure or anticipated failure to comply with a direction or order. Where the defendant is the cause of that failure, LPP may mean there is a limit to what the defence solicitor can say by way of explanation.

Change in practices

It is likely that working practices within firms may have to change to meet the challenges of CJSSS. As with most efficiency directed initiatives, they often ignore the day-to-day realities of dealing with some of the least organised and vulnerable members of society. On a daily basis most defence solicitors represent more than one client in court and some courts have extremely poor facilities for interviewing clients. It would be easy to lose sight of the word 'justice' in CJSSS, but it should never be forgotten that those charged with a criminal offence are still presumed innocent until proven guilty and that Article 6 (3)(b) European Convention on Human Rights 1950 specifically guarantees everyone charged with a criminal offence the right to have 'adequate time and facilities for the preparation of his defence'.

If a defence solicitor can honestly say that despite his best endeavours, he cannot properly advise his client as to plea at this very early stage because he simply has not had sufficient time to consider the evidence and make appropriate representations to the prosecution, justice requires an adjournment and the defendant should not suffer adverse consequences either financially or in terms of sentencing discounts if he subsequently pleads guilty. This is particularly true of defendants who are unrepresented at the police station prior to charge and have delayed seeking legal advice.

CJSSS is moving inextricably to a magistrates' court near to you. In all local justice areas plans are being made (presumably in close consultation with all local court user groups) to ensure the objectives of CJSSS can be met.

Criminal defence solicitors need to be pragmatic in these modern times (not least because a wasted costs order could be made against them) and they need to ensure, as part of client care, that their clients understand the ways things will work in magistrates' courts from now on. It is also worth remembering that CJSSS cuts both ways. Defendants have a right to expect the courts to be as equally robust with the prosecution when it falls short of the court's expectations! Seasoned observers may say that the inevitable need for delay in the system will not be eradicated under CJSSS '“ it will merely shift to the stages between arrest and the decision to charge.