Articles Criminal Defence 18th Dec 2015

The New Criminal Procedure Rules: amendments of substance or form?

The new Rules came into force on 5 October and this article provides a short summary of the significant amendments.

There are cosmetic changes, removing the plethora of empty sections left over from various alterations over the ten years since the Rules first came into force, and the Rules also now specify at Rule 2.3 that they should be referred to as the ‘CrimPR’ (thereby avoiding confusion with their civil equivalent.) But the more significant alterations are intended to implement recommendations made by Sir Brian Leveson in his Review of Efficiency in Criminal Proceedings.

Part 3

There are two key changes to Part 3 which form part of the ‘Better Case Management’ initiative.

Rule 3.3, ‘the Duty of the Parties’, provides that the parties must actively assist the court in fulfilling its duty under Rule 3.2 to “further the overriding objective by actively managing the case.” This includes, but is not limited to, communication between prosecution and defence by the day of the first hearing to establish likely plea, matters in dispute, what information and material is required by one party off another, and what actions need to be taken by whom. This new Rule implements Leveson’s recommendation that there should be a duty of direct engagement between the parties. In fact the Rule requires nothing more than a sensible robing room discussion between counsel on the morning of the first hearing so that the parties can report to the judge once in court, but of course that can only take place where the prosecution have provided sufficient information to the defence about the case. Further rules have therefore been put in place to ensure that this is done.

Rule 3.13 provides that the starting point will now be that, instead of a preliminary hearing and a PCMH, there should be one pre-trial hearing only, to be called a Plea and Trial Preparation Hearing [‘PTPH’]. There should only be further pre-trial case management hearings where a guilty plea is anticipated, further directions are needed, or a ground rules hearing is necessary. The updated Criminal Practice Directions [] provide that a further hearing will usually be necessary in Class 1 cases; in Class 2 cases with a maximum penalty of 10 years or more; in cases involving death by driving or in the workplace; where there is a vulnerable witness, or a young or disabled defendant; where there is a corporate defendant; where the case is likely to last longer than four weeks; where expert evidence is to be introduced; where a late plea is to be entered; where there is an application to dismiss or stay, or an issue to do with fitness to plead, or where arraignment could not take place at the PTPH. The defendant will not be required to attend any further case management hearing as a matter of course.

The Practice Directions require that the PTPH should be within 28 days of sending unless the Presiding Judges of the Circuit direct otherwise. There must be “sufficient [time] for effective trial preparation.”

At the first hearing in the Magistrates’ Court where the defendant is on bail and a guilty plea is not anticipated, the prosecution should already have provided a case summary including a summary of interview, key statements and exhibits including any CCTV to be relied upon at trial and any Streamlined Forensic Report, an indication of what expert evidence is likely to be adduced, and information about bad character and hearsay applications [Rule 8.3.] If the defendant is in custody then the same information must be provided at least seven days prior to the PTPH. In all cases an indictment should be lodged at least seven days prior to the PTPH.

The aim is to provide enough information by this very early hearing to be able to determine plea and identify the issues in the case. It will require considerable organisation on the part of the prosecuting authorities to achieve this within 28 days of sending.

The Practice Directions also set out measures to ensure that, where possible, defendants who wish to plead guilty can do so and be sentenced at the same time as the PTPH. The defence should notify the court and prosecution in advance of the hearing where there is to be a guilty plea; the court will give the hearing a listing of sufficient length for sentence to take place; and the judge should order a pre-sentence report where there is a “realistic alternative to a custodial sentence”, the defendant may fulfil the dangerousness criteria, or there is “some other appropriate reason for doing so.” Where a defendant pleads guilty unexpectedly at a PTPH the court should obtain a stand-down report where possible and sentence on the same day.

The new Rules aim to limit the listing of endless case progression mentions by requiring the parties to manage case progression through electronic communication where possible [Rule 3.5(2)(d)]. Hearings to deal with failure to comply with records may be conducted by live link or electronically. Once again, this will require considerable organisation on the part of both sides since an identified case progression officer who is responsible for the case will need to be appointed if electronic communication is to prove an effective tool for case management.

Part 4

Part 4 has been amended to extend the scope of service by electronic means, not only by email but also by making use of a secure dropbox online. The summary accompanying the new Rules [] states that arrangements for website service are likely to be introduced soon by the Court Service and CPS. Most documents may now be validly served by handing them to an individual’s legal representative (or prosecution counsel in the case of the CPS.) This does not include, inter alia, a witness summons or a bail application.

Rule 16.4 now provides that the court may vary the standard seven-day time limit for objecting to a party reading a section 9 statement. The aim is to reduce ‘holding objections’ and allow more time for consideration of whether witnesses are really required to give evidence. In truth this merely formalises a state of affairs that has been in practice for some time.

The new Rule 19.2 requires expert witnesses to assist with case management by complying with the court’s directions and informing the court of any failure to do so. This is clearly aimed at increasing efficiency by ensuring that experts meet time limits imposed by the court and, where possible, work together to identify the relevant areas of dispute.

Rule 25.14(2) requires a judge to give legal directions whenever it would assist the jury to do so and also gives effect to Sir Brian Leveson’s recommendation that the trial judge should, when appropriate, give directions before or after the opening to assist the jury in evaluating the evidence. This will require the early identification of the issues and liaison between counsel and the judge to ensure that the jury are not provided with directions which subsequently turn out to be unnecessary.

The amendments are all, as to be expected, aimed at focusing the attention of the parties to criminal litigation in the expectation that in so doing the amount of court time taken up by seemingly pointless and endless pre-trial hearings will be drastically reduced. In order for this to be a success it will depend first upon the prosecuting authority having available the necessary material to disclose to the defence in advance of the PTPH; second upon both sides being represented by someone who is in possession of appropriate instructions and able to take case management decisions that may have a very real impact upon the course of the case; and third upon both sides ensuring that they keep on top of the directions that have been met, serve any relevant material in good time and work together to further the overriding objective. All three aspirations are commendable, indeed all three should already be part of criminal litigation as a matter of routine rather than exception; however, whether the new rules have the impact they hope for remains to be seen.

One of the real problems that still remain is the extent to which any party can be punished for their failure to adhere to any directions that are made. At present wasted costs are rarely, if ever, imposed and given the inclusion of all subsidiary hearing costs within the main fee it is seemingly impossible for counsel to forfeit their fee for any additional pre-trial hearing.

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