Articles Criminal Defence 27th Mar 2015

The Criminal Procedure (Amendment) Rules 2015

In January 2015 the Leveson Efficiency Review made two specific recommendations:

“Effective and consistent judicial case management require the court robustly to manage its work. To that end, all parties must be required to comply with the Criminal Procedure Rules and to work to identify the issues so as to ensure that court time is deployed to maximum effectiveness and efficiency.” [Paragraph 38]

“I recommend that the Committee and the Judicial College consider ways of improving the extent to which criminal practitioners and judges understand, engage with and put into daily practice the requirements of the Criminal Procedure Rules.” [Paragraph 193]

The Criminal Procedure Rules Committee proceed by issuing a revised set of rules annually usually in July and coming into force in October alongside a revised Practice Direction. The Criminal Procedure Rules (CPR) 2014 came into effect from 6th October 2014. Unusually in 2015 there will be two Amendment Rules coming into force; The first in February 2015 and from 6th April 2015 The Criminal Procedure (Amendment No 2) Rules 2015 add some new rules to the Criminal Procedure Rules 2014 to supplement the Criminal Justice and Courts Act 2015.

To locate the accurate and updated version of the CPR go to the Ministry of Justice website.

The practical effect of the Leveson Recommendations has resulted in Judges being urged to strictly enforce the newly amended CPR and accompanying Practice Directions, as well as implement penalties for non-compliance.

The outcome is that every Criminal Practitioner must have knowledge of the contents of the Criminal Procedures Rules and accompanying Practice Directions and more importantly, must know how to apply them.

CPR 1 – Over-riding Objective

Judges are now extremely conscious of the Over-riding Objective (Rule 1) namely, that criminal cases be dealt with justly; which means (amongst other things) acquitting innocent and convicting the guilty, dealing with prosecution and defence fairly and expedition and efficiency.

In practice many Judges seem to have interpreted this Rule to mean “hurry up”. It is imperative that all practitioners know how to apply the Criminal Procedure Rules in order to be able to challenge any tribunal who takes this approach.

CPR 3 – Case Management

The trial judge is required and encouraged to engage in proactive case management based upon early identification of the issues and the setting of a procedural timetable. Evidence, whether disputed or not has to be presented in the shortest and clearest way. In addition the court has to discourage delay. [rule 3.2]

Aylesbury Crown Court has become the model for implementation of this rule. The Resident Judge takes a very active role. He hears Counsel, defendants and witnesses via video link and Skype, he has had a telephone installed in the court room so that he can contact Solicitors and Counsel directly and deals with applications via electronic methods.

This is a model which other court centres are being urged to adopt. Is this the future of Criminal Case Management Hearings?

The outcome of CPR 3 is that Defence representatives must collaborate with the judge and the prosecution to achieve the overall objective and to further effective case management [rule 3.3]. For many defence practitioners this requires a real change of mindset as traditionally in an adversarial system collaboration with other parties is usually only engaged in, if there is some discrete advantage to the defendant we represent.

In a recent multi handed Human Trafficking case [R v Boureanu] in which I defended, the Trial judge applied Rule 3.11 (c ) (vi) (vii) and directed that all defence teams must disclose all material upon which they sought to cross examine the complainants and witnesses at least 24 hours in advance of cross examination. The Judge then considered the material and ruled upon which documents and material she deemed admissible. She then went on and clarified the remit of and /or the specific questions, which she would permit emanating from this material.

Did the judge have power to do so and was she correct in her approach? In accordance Criminal Procedure Rules she was.

The additional powers to control witness questioning which came into force on 2nd Feb with the addition of Crim PR 3.9(7). This applied potentially to all witnesses. It follows the path of cases from Barker to date. In most cases a light touch will be all that is required but this gives the Judge, in rule form, the power and responsibility if necessary to control matters down to specific questions. (Criminal Procedure (Amendment) Rules 2015 SI13).

Rule 29 – Special Measures

All Practitioners will have faced the common scenario of the Crown applying for Special Measures on first day of Trial or during course of the Trial. Rule 29.10 now imposes strict criteria for what a Special Measures application must address. Any Representations against a Special Measures direction must address criteria set in 29.13. (4). Note subsection (c ) that results in all defence practitioners when proposing ABE edits now having to justify in writing the grounds upon which the identified portions should be omitted.

As of the 6th February 2015 the CPR makes it compulsory for all Judges to hold a Ground Rules hearing on any cases that involve an Intermediary. An effective method to benefit from the Ground Rules hearing is to seek leave of the Judge and use the opportunity to run the format of all your questions by the Intermediary prior to eliciting the evidence or cross examining the witness.

Amendments To Trial & Sentence In The Magistrates Court

As from the 6th April 2015 The Criminal Procedure (Amendment No 2) Rules 2015 add some new rules to the Criminal Procedure Rules 2014 to supplement the Criminal Justice and Courts Act 2015 provisions regarding trial by a single justice of the peace.

Trial by a single justice on the papers Sections 46 to 50 of the Criminal Justice and Courts Act 2015 make amendments to the Magistrates’ Courts Act 1980, the Criminal Justice Act 2003 and some other Acts. The new statutory provisions apply to offences alleged against an adult (not someone under 18), if the alleged offence can only be tried in a magistrates’ court (and so is not one serious enough to be sent to the Crown Court for trial) and if, in the event of conviction, the sentence for the offence cannot be imprisonment. Where the new provisions apply, the defendant can be tried by a single justice of the peace, on the basis of written material only, in the parties’ absence and without a hearing. The new provisions require the Criminal Procedure Rules to prescribe the documents that the prosecutor must send to the defendant, and to prescribe the period within which the defendant must respond to those documents before a single justice trial can take place. Part 37 of the Criminal Procedure Rules already provides for trial and sentence in a magistrates’ court. Rule 37.8 makes special provision for the procedure under section 12 of he Magistrates’ Courts Act 1980, which allows a defendant to plead guilty in writing, without attending court, where the offence alleged can only be tried in a magistrates’ court, and where documents setting out the facts of the offence, and explaining the procedure, have been sent to the defendant by the prosecutor.

Taking that procedure as a model, the Criminal Procedure Rule Committee has adapted rule 37.8 in a new rule 37.9 that sets out the requirements delegated to the Rules by the new Act. The new rule requires the prosecutor to send to the defendant (‘serve on’ the defendant, in the language of the Rules) documents setting out the facts of the alleged offence; documents containing or describing the other information relevant to sentence that the court will receive; a notice explaining the procedure that will apply; and forms of notice for the defendant to send to the court, if the defendant wants to do so, explaining whether the defendant wants to plead guilty without attending court, or to plead guilty at court, or to plead not guilty. The rule requires the defendant to send the court any notice that he or she wants to give, and any other written representations, within 21 days of those documents being served on him or her.

The Senior District Judge (Magistrates’ Courts) and the Justices’ Clerk’s Society have just issued guidance regarding Allocation and Committal for Sentence.

The recent “Review of Efficiency in Criminal Proceedings” by the Rt Hon Sir Brian Leveson, President of the Queen’s Bench Division highlighted issues with regard to the allocation process for offences that are triable either way. The key recommendations made within the Review included:

“Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates that either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. The word “likely” does not mean “possible” and permits the court to take account of potential mitigation and guilty plea, so can encompass cases where the discount for a guilty plea is the feature that brings the case into the Magistrates’ jurisdiction. It is important to underline that, provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does not fetter discretion to commit for sentence even after requesting a pre-sentence report”.[1]

“As a result of the Sentencing Council intend to reconsider the Allocation Guideline interim guidance has been issued on Allocation and Committal for sentence to support the Sentencing Council’s Allocation Guideline and Criminal Practice Direction 9A Preliminary Proceedings: Allocation.

In short the interim guidance makes clear that, in general, either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. There is no restriction on committing an either way case for sentence following conviction, where the provisions of section 3 (2) Powers of the Criminal Courts (Sentencing) Act 2000 apply, namely:

“ that the offence or the combination of offence and one or more offences associated with it was so serious that the Crown Court, should in the court’s opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment”

That opinion is not dependent on information showing the offence or offences to be more serious than they were originally thought to be being received after the decision to try the case summarily was made: R v. Sheffield Crown Court and Sheffield Stipendiary Magistrate, ex parte DPP [ 1994] 15 Cr App Rep (S) 768, 401. A magistrates court must consider the adequacy of its powers of sentence when determining allocation and consider the factors set out in s.19(3) Magistrates’ Courts Act 1980 and parties should be asked by the Court to make their representations on venue in line with the allocation procedure. However, although previous convictions are now taken into account in allocation, there remains an unfettered discretion after conviction to commit for sentence pursuant to s.3 Powers of the Criminal Courts (Sentencing) Act 2000. The wording of that section places no restriction on the powers of a magistrates’ court to commit for sentence to cases only where information showing the offence to be more serious than it was originally thought to be is received after summary conviction.

It is important that during Plea Before Venue and Allocation the procedure in s. 17A and s.20 Magistrates’ Courts Act 1980 is followed and the defendant is warned that if the defendant consents to summary trial and is convicted by the court, the defendant may be committed for sentence if the court is of the opinion as is mentioned in s.3(2) Powers of the Criminal Court (Sentencing) Act 2000 (above). This is to avoid any potential argument of a defendant being given a legitimate expectation, whether expressly or impliedly, that they will not be committed for sentence. When adjourning or standing cases down for pre-sentence reports in a magistrates court, the court should openly preserve the option of committal for sentence in appropriate cases.

There will also be cases where allocation for summary trial is appropriate even though it is apparent from the list of previous convictions that, in the event of the defendant’s conviction, he would be in breach of a Crown Court Suspended Sentence Order or Community Order. The power to commit the case to the Crown Court to be dealt with under paragraph 11(1) of Schedule 12 or paragraph 22 of Schedule 8 to the Criminal Justice Act 2003 can then be exercised”.

Wasted Costs

Experience reveals that the more entrenched the CPR become the less hesitation there will be on part of adjudicating tribunals to dish out wasted costs orders and/ or direct that Senior Partners or the Solicitor with conduct attend Court and justify non compliance with CPR. Many sections of the rules now stipulate adverse inferences for non-compliance.

It is now necessary for all practitioners to keep in mind the main principles of the CPR when conducting any file review or preparing any case.

The culture is changing towards a greater observance and compliance of the rules. It is anticipated it will assist in creating a more efficient case management system and will hopefully reduce the number of unnecessary and ineffective hearings. The only fly in the ointment is that with all the cuts in legally funded work, and the inevitable resulting loss of quality, who is going to attend to the additional onus the application of the CPR brings with it?

Categories: Articles